Citation Nr: 1328890	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  13-02 766	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2. Entitlement to service connection for conduction aphasia and receptive aprosodia, filed as a claim for service connection for stuttering, to include as due to an undiagnosed illness.  

3.  Entitlement to service connection for a cognitive disorder to include memory loss and as due to an undiagnosed illness.  

4.  Entitlement to service connection for a headache disability.

5.  Entitlement to service connection for sore and tender muscles and/or joint pain of the elbows, shoulders, calves, and knees, to include as due to an undiagnosed illness.

6.  Entitlement to service connection for a low back disability to include as due to an undiagnosed illness.  

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Russell P. Veldenz,  Counsel


INTRODUCTION


The Veteran served on active duty from August 1988 to August 1992, including service in the Southwest Asia theatre from August 1990 to March 1991.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran had requested a hearing, but the Veteran withdrew that request in writing in July 2013.  

The Board notes that in November 2012, the RO denied a claim for service connection for chronic fatigue syndrome.  In May 2013, a private physician submitted a letter to VA setting forth opinions and rationale as to why he has concluded the Veteran has chronic fatigue syndrome attributable to service in the Persian Gulf.  The letter is entitled "letter appealing the decisions of the November 7, 2011 denial letter . . ."  The Veteran, however, did not sign this letter and no other document signed by the Veteran has been associated with the file that expressed disagreement with the November 2012 decision.  The Board therefore finds that the Veteran has submitted new and material evidence prior to the expiration of the applicable appeal period to the November 2012 decision and the issue of service connection for chronic fatigue syndrome remains pending.  See 38 C.F.R. § 3.156 (b).  
The issue of chronic fatigue syndrome has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  There is competent evidence that the Veteran was exposed to loud noise in service and the Veteran's current tinnitus had its onset from an injury, disease, or event of active service origin.

2.  There is competent evidence that the Veteran's conduction aphasia and receptive aprosodia, claimed as stuttering, had its onset from an injury, disease, or event of active service origin.

3.  The Veteran was not diagnosed or treated for cognitive disorder or cognitive symptoms in service and a cognitive disorder was not manifested to a compensable degree within one year from the date of separation from service; and is unrelated to an injury or disease or event in service.

4.  The Veteran was not diagnosed or treated for a headache disorder or headache symptoms in service and a headache disorder was not manifested to a compensable degree within one year from the date of separation from service; and is unrelated to an injury or disease or event in service.

5.  The Veteran has an undiagnosed illness manifested by sore and tender muscles and/or joint pain of the elbows, shoulders, calves, and knees which manifested to a compensable level within one year of discharge.  

6.  The Veteran has an undiagnosed illness manifested by lumbar spine pain which manifested to a compensable level within one year of discharge.  


CONCLUSION OF LAW

1.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 

2.  The criteria for service connection for conduction aphasia and receptive aprosodia, claimed as stuttering, have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

3.  The criteria for service connection for a cognitive disability, to include memory loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

4.  The criteria for service connection for a headache disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

5.  The criteria for service connection for an undiagnosed illness manifested by sore and tender muscles and/or joint pain of the elbows, shoulders, calves, and knees have been met.  38 U.S.C.A. § 1110, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.317, 4.59 (2012).

6.  The criteria for service connection for an undiagnosed illness manifested by low back pain have been met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.317, 4.59 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.  
As the claims for service connection for tinnitus, service connection for conduction aphasia and receptive aprosodia (stuttering), service connection for sore and tender muscles/joint pain, and service connection for low back pain are resolved in the Veteran's favor, further discussion here of compliance with the VCAA with regard to those claims are not necessary.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- adjudication VCAA notice by letter, dated in April and May 2009.  The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service.

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  Further VCAA notice is not required.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran VA examinations in July 2009 and January 2011.  

The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records and other medical records of evidence, an interview and an examination of the Veteran, as well as sufficient findings to rate disability, and offered opinions whether any disability at issue is related to service.  The examiners also explained the reasoning for the opinions.  Therefore, the Board concludes that the VA examinations are adequate.  38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b).  The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  For example, arthritis and organic diseases of the nervous system are both listed as a disease under § 3.309 as a chronic disease.

The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain listed disabilities, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112, 38 C.F.R. §§ 3.307, 3.309.

The term Persian Gulf Veteran means a Veteran who served on active military, service in the Southwest Asia Theater of operations during the Persian Gulf War.  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317. 

The Persian Gulf War began on August 2, 1990, through a date to be prescribed by Presidential proclamation or law.  38 C.F.R. § 3.2(i).

VA will pay compensation to a Persian Gulf Veteran for qualifying chronic disability, resulting from any of the following (or any combination of the following): an undiagnosed illness or chronic multisymptom illnesses, including fibromyalgia and chronic fatigue syndrome, and or with signs or symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness.  38 C.F.R. § 3.317. 

For service members who served in the Southwest Asia theater of operations during the Persian Gulf War who exhibit objective indications of chronic disability manifested by one or more specific signs or symptoms, such disability may be service connected provided that it became manifest during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more provided that the disability cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 501(a); 38 C.F.R. § 3.317(a)(1).

"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).  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).

Signs and symptoms which may be manifestations of undiagnosed illness include signs or symptoms involving, but not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 C.F.R. § 3.317(b).

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); 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).

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 C.F.R. § 3.303(d).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Preliminary Matters

The Veteran served in the Southwest Asia Theatre of Operations from August 1990 to March 1991.  Therefore, 38 C.F.R. § 3.317 applies to the Veteran's claims.  

As noted, as a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses.  38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses).  Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible).  The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter.
Here, however, while the Veteran is competent to describe symptoms during and since service, he is not a doctor competent to diagnosis his condition in service or at any time thereafter.  When the medical evidence weighs against the likelihood of a link between service and a current condition, VA will not find that there is a relationship between a current diagnosis, for example a cognitive disorder, and service based upon the continuity of symptomatology as stated by the Veteran.  

When there is evidence of continuity of symptomatology, it does not necessarily follow that there is a relationship between a current diagnosis and the continuity of symptomatology as stated by the Veteran.  Medical evidence is required to demonstrate such a diagnosis and a relationship to service unless such the diagnosis and the relationship to service is one to which a lay person's observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (medical evidence is required to demonstrate continuity of symptomatology and any present disability unless such a relationship is one to which a lay person's observation is competent).

Although the Veteran is competent to describe symptoms of, for example, arthritis, unless the diagnosis is a condition that it capable of lay observation, the determination as to the presence or diagnosis of the disability is medical in nature and competent medical evidence is required to substantiate the claim.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  The Veteran, except for tinnitus, is not asserting any condition that is capable of lay observation.  See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition).

Furthermore, for most of the disabilities before the Board in this appeal, a diagnosis cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses.  As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, such as X-rays and laboratory tests, which requires medical knowledge.  No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis.  Therefore, the Veteran's assertion or opinion that he has a given diagnosis or that no diagnosis can be made, and the relationship of a diagnosis or symptom to service is not competent evidence.  The Veteran's discussion of his symptoms over the years certainly is important, however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional.

To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of his symptoms.  Such lay evidence is relevant and competent.  To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, the relationship of the disability to service, or that his symptoms have resulted from an undiagnosed illness, or from his exposure while serving in the First Gulf War, the Board has disregarded the Veteran's opinions in its analysis.  

Service Connection for Tinnitus

The service treatment records indicate the Veteran's hearing was tested four times in service and the Veteran's hearing was normal, including the separation examination in June 1992.  At the separation examination, he reported that his hearing was normal and he did not have any ear, nose, or throat trouble.  

In the Veteran's Gulf War Registry examination in May 2010, the Veteran reported hearing loss and tinnitus since returning from the Gulf.

In June 2009, the Veteran reported noticing tinnitus whenever he was in a quiet environment.  

In a VA examination in August 2009, the Veteran reported tinnitus bilaterally and stated it started in 1993 while he was attempting to fall asleep in a quiet room.  The VA examiner concluded that the Veteran had normal hearing for VA purposes and therefore any hearing loss or tinnitus was not due to service.  

In February 2010, as part of his VA War Related Illness and Injury Study Center (WRIISC) evaluation, a neurologist noted the Veteran had intermittent tinnitus.  At the general WRIISC examination, the Veteran recalled that while serving in Kuwait during the First Gulf War, he was close enough to feel the ground shake with artillery blasts and bomb explosions occurring in the nearby vicinity.  The Veteran served in a communication unit.

In March 2010, a private physician, Dr. R. K. Dyer reported that the Veteran complained of ringing in both ears but it does not interfere with his sleep.  The Veteran noted an acute onset of a ringing noise while on the rifle range in 1989.  Initially, it was quite loud but over time it has diminished, although it has not resolved.  Dr. Dyer suspected the Veteran's tinnitus related to sensorineural hearing loss and likely associated with the Veteran's noise exposure experienced at the rifle range.  

The Veteran, in his notice of disagreement dated in November 2011, disputed the history recorded by the VA examiner that his tinnitus began in 1993.  The examiner only asked questions relating to his post-military experience and when asked when he first experienced ringing in his ears, in the context of the other questions, the Veteran replied with 1993.  The Veteran stated it actually began in service at the rifle range.

In a letter dated in May 2013, Dr. J. N. Baraniuk noted the Veteran developed tinnitus following duty on the rifle range and thereafter had extensive noise pollution with continuous artillery bombardment in the January and February 1991 invasion of Kuwait.  

Considering the pertinent evidence in light of the governing legal authority, and resolving all doubt in favor of the Veteran, the Board finds that the claim of service connection for tinnitus must be granted.

Tinnitus is capable of lay observation.  Charles v. Principi, 16 Vet. App. 370, 374 (2002) (On the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law , lay observation is competent- "ringing in the ears is capable of lay observation").  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). 

The Board finds that the Veteran is competent to describe ringing in his ears and his testimony is credible that he has tinnitus.  Thus, the evidence establishes that the Veteran currently has tinnitus. 

The remaining question is whether service connection may be granted when the disability is first diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disabilities were incurred in service.  38 C.F.R. § 3.303(d).

The Board recognizes that the Veteran did not report tinnitus in his VA examination or his separation examination.  As to the separation examination, he was only asked whether he had a hearing loss, which was answered in the negative, and whether he had ear, nose, and throat trouble.  Resolving all doubt in favor of the Veteran, the Board finds the Veteran may have understood the question as limited to injuries or illnesses such as infections that involved the ear, if not all three body parts (ear, nose, and throat), and not meant to cover a symptom such as tinnitus.  As to the VA examination, the Veteran stated that he did not understand what the VA examiner word meant when asked when he developed tinnitus because all of the other questions had been about post service experiences and the Veteran thought the question on tinnitus also related to his post-service experiences.  As demonstrated above, on all other occasions, he has reported tinnitus symptoms such as ringing in the ears began in service.  The Board also notes that the Veteran has been diagnosed with a cognitive disorder in February 2010 and that may have affected his answer.  Accordingly, the Board finds that the Veteran is credible that he misunderstood the VA examiner when questioned and that overall his statements and testimony are credible.  The statements and testimony tend to prove a fact, that is, he noticed that tinnitus began in service.  Moreover, the Board finds the Veteran's report of having experienced tinnitus since separation from service to also be credible.  The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure), resulting in tinnitus. 

While service treatment records reflect no direct reports of tinnitus or ringing in the ears, there also is no indication in these records, or any post-service treatment records, that the Veteran ever directly denied tinnitus or a history of tinnitus.  The only apparent history of tinnitus inconsistent with his written statements and testimony is the VA examination, but as noted, the Board has determined that inconsistency resulted from a misunderstanding.  As the Veteran's lay statement is competent and credible with regard to noise exposure in service and in describing tinnitus in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and noise exposure in service on the basis of continuity, all the elements of service connection have been met and service connection is established.  See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence).

A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."; see 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").


Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus began in service, and the claim for service connection for tinnitus must be granted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Service Connection for Conduction Aphasia and Receptive Aprosodia

The Veteran has filed a claim for service connection for conduction aphasia and receptive aprosodia, filed as a claim for service connection for stuttering, to include as due to an undiagnosed illness (stuttering disability).  

The service treatment records do not reveal a history, complaint, treatment, or a diagnosis involving a stuttering disability while in service.  The Veteran states he was in a communications unit with a specific MOS of radio operator and therefore had to be able to clearly talk and be articulate over the radio.   

The Veteran and his mother both have stated the Veteran never had a stuttering problem before service.  She also states the Veteran now speaks slowly but still stutters most of the time.  He is very hard to understand on the phone.  In June 2009, the Veteran stated he routinely caught himself not being able to spit out words, which he found frustrating.  The Veteran knows what he wants to say, but the words will not come out.  His friend, L. D. W., in a statement received in August 2009, noted the Veteran had intermittent stuttering.  

In May 2009, at his Gulf War Registry examination, the Veteran reported that he did not have a stuttering problem before the Gulf War.

In the July 2009 VA examination, the Veteran reported that the stuttering disability started at separation and occurs on and off.  Sometimes, he can go for hours without a problem and at other times, he cannot say what he wants.  His mother brought the issue to his attention.  On examination, the Veteran's neurological examination was normal except for the stuttering, a report of headaches, and a memory loss problem.  The examiner himself noted the Veteran had a stuttering disability.  The examiner stated that the stuttering was not due to an undiagnosed illness but is a speech defect.  
In September 2009, a VA neuropsychologist evaluated the Veteran because of complaints of memory problems but noted the Veteran had a mild stuttering disability which the Veteran stated was exacerbated by stress and anxiety.  He did not know the date of onset.  He made a similar report in October 2009 as he was not sure when it started but that it was worse with stress or novel situations.  

The February 2010 WRIISC neurological evaluation included stuttering and the Veteran's concern that his problems resulted from the environment in Iraq.  The exact date of onset is unknown but the Veteran believes it has been there for over 10 years.  The problem is stable and occurs intermittently.  It is worse with stress.  The neurologist stated that the Veteran's stuttering, which was frequent, had an unclear etiology.  In the WRIISC psychological evaluation, the Veteran reported developing a severe stutter approximately two years after returning Kuwait, or approximately 1993.  It was also noted he had a communications MOS in the military but he cannot perform those same duties now.  The neuropsychological evaluation noted occasional stuttering during the evaluation but that it subsides as time passed.  The neuropsychologist determined the Veteran did not have an expressive or receptive aphasia, but otherwise did not offer an etiology of the Veteran's stuttering disability.  

A speech pathologist interviewed the Veteran and his mother who saw the Veteran within months of his return from military duty and the disfluency started within two months.  The etiology of the Veteran's cognitive problems remained unknown but the onset was within 2 years after his return from the Persian Gulf and is similar to other Veterans.  

The speech pathologist characterized the stuttering disability as a disfluency that was mild to moderate in severity.  The final diagnosis was conduction aphasia mild to moderate and a neurogenic disfluency that was moderate and likely related to the conduction aphasia.  The Veteran had a moderate receptive aprosodia and reduced affect in speech possibly related to mood, pain, and/or fatigue.  Finally, deferring to the neuropsychologist, the Veteran had cognitive defects.  That had a possible pragmatic affect in that the Veteran, if interrupted, forgets what he wants to say.  

In April 2010, a VA letter to the Veteran after his Gulf War Registry examination advised the Veteran that the examination demonstrated conduction aphasia and receptive aprosodia with a reduced affect in speech.  The letter stated that any diagnosis may not be related to exposures in the Gulf War.  

In a statement received in May 2010, the Veteran stated he believed his exposure to chemicals in the Gulf war affected his brain physiology and neurology.  He served as a radio operator, which required him to speak clearly and intelligently.  He began stuttering after discharge.  

In January 2011, the Veteran was offered a VA examination regarding his stuttering disability.  The Veteran reported it was his mother who noticed the problem and brought it to his attention.  He had no problems before separation as he had been a radio operator and his speech was loud and clear.  He never had a stutter during childhood.  He has difficulty conveying his thoughts and the words he wants to say.  It has progressively worsened.  A speech therapist has told the Veteran to speak slowly and he has had a fair response to this suggestion.  He experiences stuttering on a daily basis and it lasts seconds.  It is precipitated by stress, anxiety, and crowds and he experiences relief by being at home.  The Veteran, who works in housekeeping, stated he cannot be promoted in his job due to communications difficulty.  

The VA examiner concluded that the stuttering including the conduction aphasia and receptive aprosodia as likely as not was related to service as tests from the WRIISC showed a bilateral hemisphere involvement.  A nonfocal etiology was indicated consistent with toxic and blast exposure in Desert Storm.  This was based upon the extensive WRIISC study in February 2010.  

That same month, another VA medical care provider reviewed the file.  That VA expert concluded that at least as likely as not, a lack of association between the mild cognitive disorder and blasts excludes causation with the Veteran's alleged stuttering, conduction aphasia and receptive aprosodia.  Further the stuttering, conduction aphasia and receptive aprosodia was less likely the result of or permanently aggravated by an event in service or occurring within 1 year.  As likely as not it is due to a multifaceted etiology of anxiety, stress, and other factors unrelated to service.  He also stated is also as likely as not associated with his diagnosed cognitive disorder or caused by the blasts he experienced in the Persian Gulf.  The examiner also, earlier in the report that the allegations if related to injury/exposure, would at least as likely as not be related to a traumatic brain injury.  

In May 2013, Dr. Baraniuk concluded the Veteran had stuttering disorder due to an undiagnosed illness due to the results demonstrating a cognitive disorder.  

In light of the opinion of the first January 2011 VA examiner, the Board finds that it is not necessary to address the issue of whether the stuttering disability is due to an undiagnosed illness as that examiner's opinion is sufficient to establish direct service connection.  Thus, there is no need to discuss the opinions of the WRIISC neurologist, who stated the stuttering disability had an unknown etiology or Dr. Baraniuk, who concluded that the stuttering disorder was due to an undiagnosed illness.  As to the July 2009 VA examiner, he only stated the stuttering disability was a speech defect, not an undiagnosed illness.  That examiner did not offer any opinion as to whether the stuttering disability, whether a speech defect or not, was related to service.  Finally, the Board finds the VA examiner who offered a second opinion in January 2011 was inconsistent in his opinion and the Board has therefore assigned his opinions little probative value. 

The first January 2011 VA examiner, who actually tested and interviewed the Veteran, concluded the stuttering, conduction aphasia and receptive aprosodia as likely as not were related to service as tests from the WRIISC showed a bilateral hemisphere involvement.  A nonfocal etiology was indicated consistent with toxic and blast exposure in Desert Storm.  The Board finds this opinion to be the most probative as probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale.  Accordingly, the opinion is found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

Thus, based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's stuttering disability is due to service.  

Service Connection for Cognitive Disorder Claimed as Memory Loss

The Veteran filed a claim for service connection for memory loss, but as the evidence establishes, he has been diagnosed with a cognitive disorder, which involves memory.  As the Veteran summarized his problem in a statement dated in June 2009, he is unable to remember what he has done, what he has said, or where he has been.  

Upon entrance in February 1988, the Veteran specifically denied any loss of memory.  His mother in a letter dated before service, in November 1987, noted the Veteran had at times a short attention span.  No problems with memory were noted on the separation examination in June 1992.  

In the May 2009 Gulf War registry examination, the Veteran reported his memory loss causes him not to find the word he wants, leading to his stutter, and he cannot remember his past.  

In a VA examination in July 2009, the Veteran does not know the date of onset for his memory problems.  He reported he cannot remember things and needed to write them down.  Upon examination, other than the memory loss, a report of headaches, and stuttering, there were no other neurological or psychological symptoms and the examination was normal.  The diagnosis was a subjective memory loss with a normal examination.  

A friend, L. D. W., in a statement received by VA in August 2009 stated the Veteran does not retain information given to him.  The Veteran's mother also submitted a statement stating the Veteran did not remember things from the day before, the prior week, or even childhood.  He also laughs inappropriately.  

In a neuropsychological evaluation dated in September 2009, the Veteran noticed he began experiencing memory problems after separation, but beyond that, he is not sure when it began.  He has problems with appointments, names, numbers, etc., and has to repeat questions over and over.  He has no problem driving.  The Veteran believed both his long term and his short term memory were getting worse.  His attention was better if the item was important and he does better if he follows a routine.  A word finding problems was also noted.  

In February 2010, the Veteran underwent his WRIISC evaluation where his second most important complaint was his poor short term memory.  He has been experiencing problems with his short term memory since separation.  He forgets appointments, tasks, or even what movie he watched a week earlier.  He is easily distracted and compensates by taking notes and relying on a routine.  In the general examination, he stated he has had memory problems since he returned from Kuwait.  The neurological evaluator believed the memory loss had a multifactorial cause.  

A PET scan at the WRIISC evaluation was within normal limits but there was a questionable decrease in activity in the temporal lobes.  In August 2011, the physician who made the conclusion stated he thought there was a slight decrease in activities and the changes could be consistent with some of the Veteran's difficulties as clearly documented by the neuropsychologist.  There was no system available to provide objective, quantifiable clinical results for the PET scan results.  It was his clinical impression that the Veteran's cognitive problems have a neurophysiologic basis but he cannot state it any more clearly.  

Neuropsychological testing determined that the Veteran had evidence of cognitive impairment that was described as borderline and mild.  The Veteran's memory was impaired in trying to learn new material verbally, by material location, or learn new faces.  He had moderate difficulty remembering novel instructions for new tasks.  He had a mild attention deficit with visual and auditory material.  He could handle simple verbal or spatial instructions but mild impairment was demonstrated for more complex instructions.  His impairment was greatest with episodic material, i.e., presented or mentioned only one time.  He is severely impaired in auditory social perception when no visual cues are present (such as over the phone).  The Veteran showed anxiety at the beginning of a new task but it was not pervasive as it disappeared as time went on.  The examiner concluded the Veteran was unable to function at a college trained level or in a complex social environment.  The Veteran was diagnosed with a mild chronic cognitive disorder.  The etiology was unknown, but developed within two years after the Gulf War.  This was a time frame equivalent with other similarly situated Veterans.  The diverse problems that the Veteran had were typical from what was seen in Veterans of the first Gulf War.    

The final psychological assessment from the WRIISC evaluation noted the Veteran had memory and word finding problems.  The memory problems had existed since separation and resulted in the Veteran forgetting names and appointments and he asked questions repeatedly but if something was personally significant to him, he was able to remember.  The note indicated the Veteran had an associate's degree in computer programming.  It is not clear when the Veteran obtained this degree.  

The Veteran's private physician, Dr. J. Grizzle noted in a letter dated in March 2010 that the Veteran had memory loss that he associated with his service in the Gulf.  

In a May 2010 statement, the Veteran stated his memory loss prevented him from functioning in all but the very low level jobs.  He had to give up a highly skilled level job at a tire plant to take a position as a janitor due to his inability to concentrate and learn new skills.  He believed his cognitive disorder and memory loss resulted from the chemical exposure he had in the Gulf War.  The Veteran stated he did not suffer head trauma while serving in the Gulf.  

In a VA examination in January 2011, the Veteran noted he left service in August 1992 and by early 1993 he started experiencing difficulty with names, dates, numbers, etc.  He uses a notebook to keep track of his tasks.  He has difficulty with direct instructions or learning new materials.  He did not have any specific head injury but was within one to two miles of blasts repeatedly while on active duty.  He reported the diagnosis of a mild cognitive disorder at the WRIISC study.  The study also resulted in a diagnosis of sleep apnea and the Veteran was told the CPAP machine would help with his cognitive disorder.  The Veteran reported his cognitive symptoms have instead gotten progressively worse.  The examiner diagnosed mild cognitive disorder and memory loss.  The examiner also diagnosed chronic fatigue without objective findings but the chronic fatigue was less likely than not due to service and more likely due to moderate sleep apnea (also noted in the records as restrictive airway disease and asthma), obesity, and diabetes mellitus.  Those conditions do not meet the criteria for chronic fatigue syndrome.  As to the cognitive disorder, the VA examiner agreed with the WRIISC diagnosis that the Veteran had a cognitive disorder but it was due to several multifactorial etiologies from stress, anxiety, sleep apnea, and other factors unrelated to service. 

In May 2013, Dr. Baraniuk, explaining why he has concluded the Veteran also has chronic fatigue syndrome, noted the Veteran has lost the ability to concentrate and focus on specific tasks.  The Veteran finds that his mind wanders.  In Dr. Baraniuk's opinion, this was typical presentation of a cognitive disorder for chronic fatigue syndrome.  It does not rule other causes, but ruled out an Alzheimer type diagnosis.  

Analysis

After a thorough review of the evidence, the Board has concluded that the Veteran's cognitive disorder, including memory loss, is not related to service.  He was diagnosed with a cognitive disorder during the WRIISC study in February 2010. The question is whether that diagnosis is related to service.  The Veteran attributes his cognitive disorder to service in the Persian Gulf.  He does not assert any trauma to the head while serving in the Gulf or at any other time while on active duty.  He does assert it is related to the various chemical and environmental exposures in service and it is due to an undiagnosed illness.  As noted above, the Board has found the Veteran competent to offer evidence of his symptoms such as memory loss, but he is not competent to offer an opinion as to the etiology of the cognitive disorder.  

Further, his symptoms such as memory loss are not due to an undiagnosed illness.  While the VA examiner  in June 2009 diagnosed a subjective memory loss with a normal examination in July 2009, the Veteran underwent further, more extensive testing and investigation in the February 2010 WRIISC evaluation, where he received a clear diagnosis of a cognitive disorder that was made by his history, physical examination and laboratory tests.   Therefore, his claim cannot be granted based on undiagnosed illness under 38 C.F.R. § 3.317.  

The evaluators from the WRIISC, however, did not offer any opinion as to the connection between the cognitive disorder and service, except the neurologist stated it had an unspecified multifactoral cause.  The neuropsychologist noted that the etiology was unknown but developed within two years after the Gulf War.  He stated this was typical from what was seen in other Gulf War Veterans, but did not state that this Veteran's cognitive disorder of memory loss and word finding was the result of service on the Gulf War.  In a similar manner, Dr. Baraniuk, detailing why he concludes the Veteran has chronic fatigue syndrome, notes the Veteran has lost the ability to concentrate and focus on specific tasks and this was typical presentation for a cognitive disorder for chronic fatigue syndrome.  He did not, however, state it was the same cognitive disorder diagnosed in February 2010 nor state the Veteran's cognitive disorder of memory loss and word finding was the result of service on the Gulf War.  To the extent it is related to Dr. Baraniuk's diagnosis of chronic fatigue syndrome, that disability is not a currently service-connected disability.  

The Board acknowledges that the Veteran's private physician, Dr. Grizzle, stated the Veteran has memory loss that he associated with the Veteran's service on the Persian Gulf.  Dr. Grizzle, however, did not offer any reasons or basis for his conclusion nor did he indicate he reviewed all of the medical evidence contained in the file.  Therefore, the Board has assigned little probative value to his opinion.  The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).  Additionally, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions).  

This leaves the opinion of the January 2011 VA examiner who agreed with the WRIISC diagnosis that the Veteran had a cognitive disorder but it was due to several multifactorial etiologies of stress, anxiety, sleep apnea, and other factors unrelated to service.  Thus, the examiner did not attribute the cognitive disorder to one cause, but several causes that have not been related to service.  

The Board also notes the Veteran has stated his memory loss and word finding symptoms began after he returned from the Persian Gulf.  There is no evidence in his service treatment records, including his separation examination in 1992.  Moreover, the first medical record documentation of memory loss or word finding problems start in 2009 with complaints and a diagnosis occurred in February 2010.  There are earlier records after discharge such as the medical records of his former employer and his private physician, but there is no documentation of memory loss or word finding problems.  Therefore, the Board finds that the Veteran is not credible that he has had problems or symptoms of a cognitive disorder since separation.  The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible).  Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are less probative than the negative evidence, which interrupts continuity.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes).  The service treatment records and subsequent treatment records are probatively significant and given a lot of weight and credibility because they were prepared at a time contemporaneous to the alleged incident in question.  See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996).  As noted, the VA examiner took into account the Veteran's lay reports of symptoms and their onset to form his opinions.

In light of the foregoing, the Board finds the opinion of the VA examiner in January 2011 as persuasive evidence against the claim.  As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in his opinions, the Board finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current cognitive disorder, which opposes, rather than supports, the claims.  Accordingly, the weight of the medical evidence is against an association or link between any current cognitive disorder and service, including his service in the Persian Gulf.  The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).


Service Connection for Headaches

The Veteran never complained of headaches or sought treatment for headaches while in service, including at the separation examination in June 1992.  

In July 1999, after service, the Veteran sought treatment for complaints that included headaches which was attributed to a reaction to pigment dust at his civilian job.

In December 1999 the Veteran complained of headaches while receiving treatment for an upper respiratory infection.  

In June 2009, the Veteran made a general complaint of headaches, stating it often felt like his head was going to explode.  During the headache, he needed to eliminate sound and light, take 3 Tylenol and go to sleep.  

The Veteran's mother submitted a statement in August 2009 that she has observed the Veteran seems to have headaches occurring more frequently than normal and he often had to lie down in a dark room.  

In the May 2009 Gulf War registry examination, the Veteran stated the headaches began in 1993 in the front behind his eyes.  He had problems with light and sound.  He does not have any nausea or vomiting.  The pain was a pressure and the Veteran felt as though his head was going to explode.  They occur twice a month and last until he goes to sleep.  

In a July 2009 VA examination that covered other disabilities the Veteran claimed resulted from his Gulf War service such as memory loss, complaints of off and on headaches were noted.  

In October 2009, Dr. J. Grizzle, who was at that time the Veteran's primary care provider, recorded that the Veteran complained of headaches that recurred every few weeks and were gradually worsening.  The headaches were associated with bright lights and emotional stress.  They were located bilaterally in the frontal region but did not radiate. The Veteran described the pain as 8/10 and sharp.  He had during a headache phonophobia but no nausea and vomiting or other associated symptoms.  The Veteran used a darkened room for the symptoms.  

That same month, the Veteran underwent a neuropsychological evaluation that covered the Veteran's headache symptoms.  He experienced them once or twice a week 10/10 with light and sound sensitivity.  

At the WRIISC evaluation in February 2010, the Veteran listed headaches as one of his concerns in the neurological examination.  The frontal headaches had an abrupt onset since 1992.  He has approximately two a month without a clear trigger.  He stated they were severe, 9/10 and lasted from a few hours to a day.  The attacks may be associated with photophobia, phonophobia, and nausea.  There was no vomiting.  The diagnosis was likely migraines.

In the general history and physical at the WRIISC evaluation, the Veteran stated the headaches started at around the time he left Kuwait.  Headaches located at the front center of his head and were not pounding.  The happened approximately twice a month and frequently started at night.  The Veteran could not identify a particular trigger but thought fatigue may have something to do with the headaches.  

In the psychiatric evaluation, the Veteran stated both his stuttering disability and headaches, called migraines, started the same time, approximately two years after he left Kuwait.  The Veteran felt his symptoms were due to exposure he and other Gulf War Veterans had from a combination of gas, fumes, toxins, and vaccinations.  The diagnosis was anxiety disorder NOS that may be connected to the Gulf War I cluster of symptoms.  The GAF score was 59.

In a letter dated in March 2010, the Veteran's private care provider, Dr. J. Grizzle, stated he had been treating the Veteran for five years and the Veteran had multiple symptoms since exposure to chemicals during the war including migraine headaches, which resulted in prostrating attacks averaging two to three times a month.  The Veteran also had chronic fatigue, irritability, dizziness, weakness, and feelings of lightheadness.  Dr. Grizzle was of the opinion that all of the Veteran's symptoms more likely than not were due to Gulf War exposure and the symptoms will continue.  

In a VA examination in January 2011, the Veteran stated his headaches occurred mostly at night and started after he got out of the military.  The headaches are behind his eyes and there is light and sound sensitivity.  There are no gastrointestinal symptoms.  He reported self medicating the headaches for 18 years before seeking medical help and was told he had migraine headaches.  While the course has been stable, 2-3 a month, the duration lasts to eight hours and is severe.  The Veteran could not identify any triggers.  He can alleviate the symptoms with a quiet, dark room, medication, and sleep.  The diagnosis was migraine headaches.  The migraine headaches were less likely than not related to service, but more likely than not due to the Veteran's non-service connected anxiety, stress and poor sleep habits due to his diagnosed sleep apnea.  

In February 2012, Dr. J. N. Baraniuk who evaluated the Veteran for, and diagnosed chronic fatigue syndrome noted symptoms including light sensitivity but did not attribute them to headaches.  In May 2013, Dr. Baraniuk added that having a migraine headache disorder are associated with patients who have chronic fatigue syndrome symptoms.  

After a thorough review of the evidence, the Board has concluded that the Veteran's headache disorder, including migraine headaches, is not related to service.  The Veteran asserts the headaches are related to the various chemical and environmental exposures in service and it is due to an undiagnosed illness.  As noted above, the Board has found the Veteran competent to offer evidence of his symptoms such as the pain from headaches, their severity and location, but he is not competent to offer an opinion as to the etiology of any headache disability, or that it was due to an undiagnosed illness and/or otherwise has an unknown etiology.  As discussed below, the only competent medical opinion on the issue has attributed the headaches to other disabilities that are not related to service.  Therefore, his claim cannot be granted based on undiagnosed illness under 38 C.F.R. § 3.317.  

The evaluators from the WRIISC did not offer any opinion as to the connection between the headaches and service, except to document the manifestations and symptoms and to note the Veteran's belief the headaches resulted from the toxins, chemicals, and vaccinations of service in the Persian Gulf.  Evidence which is simply information recorded by a medical examiner, unenhanced by any additional comment by that examiner, does not constitute competent medical history.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  Nothing in the record indicates the WRIISC evaluators used this evidence to conclude that the headaches resulted from his Persian Gulf service.  In a similar manner, Dr. Baraniuk, detailing why he concludes the Veteran has chronic fatigue syndrome, notes the Veteran has light sensitivity and migraine headaches but only offered that patients having a migraine disorder increases in patients who have chronic fatigue symptoms.  The Veteran is not service connected for chronic fatigue symptoms and therefore cannot claim service connection as a disability caused or aggravated by a service connected disability.  Further, Dr. Baraniuk did not, however, state the Veteran's headaches disability was the result of service on the Gulf War.  

The Board acknowledges that the Veteran's private physician, Dr. Grizzle, stated the Veteran has migraine headaches that he associated with the Veteran's service on the Persian Gulf.  Dr. Grizzle, however, did not offer any reasons or basis for his conclusion nor did he indicate he reviewed all of the medical evidence contained in the file.  Therefore, the Board has assigned little probative value to his opinion.  The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).  Additionally, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions).  

This leaves the opinion of the January 2011 VA examiner who diagnosed migraine headaches but it was due to several multifactorial etiologies from stress, anxiety, poor sleep habits, and other factors unrelated to service.  Thus, the examiner did not attribute the cognitive disorder to one cause, but several causes that have not been related to service.  

The Board also notes the Veteran has stated his headache symptoms began after he returned from the Persian Gulf.  There is no evidence in his service treatment records, including his separation examination in 1992.  Moreover, the first medical record documentation of memory loss or word finding problems start in 2001 with complaints in the private employer health records in 2001, which attributed headaches to the work environment of that job, i.e., exposure to pigment dust.  Dr. Grizzle's records do not document any headaches or treatment for headaches until October 2009.  Those records do not indicate an earlier onset of symptoms.  Therefore, the Board finds that the Veteran is not credible that he has had problems or symptoms of headaches since separation.  

The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible).  Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are less probative than the negative evidence, which interrupts continuity.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes).  The service treatment records and subsequent treatment records are probatively significant and given a lot of weight and credibility because they were prepared at a time contemporaneous to the alleged incident in question.  See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996).  As noted, the VA examiner took into account the Veteran's lay reports of symptoms and their onset to form his opinions.

In light of the foregoing, the Board finds that the opinions of the VA examiner in January 2011 as persuasive evidence against the claim.  As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in his opinions, the Board finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current cognitive disorder, which opposes, rather than supports, the claims.  Accordingly, the weight of the medical evidence is against an association or link between any current migraine headache disorder and service, including his service in the Persian Gulf.  The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

Service Connection for a Muscle/Joint Disability and Service Connection for a Low Back Condition

In the entrance examination in February 1988, the Veteran did not report a history of recurrent back pain, joint pain, or any muscle symptoms.  The physical examination was normal.

In January 1992, the Veteran complained of low back pain around the right iliac crest.  The diagnosis was low back strain.  

In the separation examination in June 1992, the history and physical examination was normal.  

In May 1999, the Veteran reported a sore right shoulder to his employer which was attributed to repetitive motion using his right arm scooping pigments.

In April 2001, he again reported shoulder pain to his employer.  There was numbness and tingling to the hands when he experienced shoulder pain.

An X-ray of the lumbar spine in May 2009 noted the lumbar vertebral bodies were in good alignment and heights and the intervertebral disc spaces were well maintained.  There was no evidence of spondylolysis, spondylolisthesis, or fracture.  An X-ray of the right shoulder, however, demonstrated minimal degenerative changes in the right acromioclavicular joint with a small ossification just distal of the right clavicle.  The physician who interpreted the report stated it could represent an old avulsed fragment.  The right knee X-ray showed no abnormalities.  X-rays of the elbows demonstrated minimal enthesophyte form of the olecranon bilaterally.  Otherwise, the elbows were normal.  

In a statement dated in June 2009, the Veteran reported he had muscle joint and pain and stated he had been treated twice in service for back pain and was told it was a sprain.  The Veteran stated, however, that not even a year had passed after his return from the Gulf and the pain began.  At that time, it was his back that had pain and it has continued.  He reported the pain later found its way to in his calves, shoulders, elbows, and right knee.  

In April 2009, a private physician, Dr. J. Grizzle, treated the Veteran for left posterior calf pain with edema.  The Veteran also noted the leg ballooned up at times and he had pain.  The pain was sharp and pounding.  There was no numbness, tingling, stiffness, or loss of motion.  Cold weather made it worse and medication provided mild relief.  The Veteran does not have a family history of rheumatoid arthritis.  

In a May 2009 Gulf War Registry evaluation, the Veteran complained of joint pain in the right knee, the shoulders bilaterally and the elbows bilaterally.  He also had back pain that began in service and he was treated in service.  The pain comes and goes but the back pain was most frequent.  He also had bilateral muscle calf pain not associated with activity.  He gets the pain about every two weeks.  The Veteran stated he was worked up for deep vein thrombosis but the results were negative.  

In a July 2009 VA examination, the Veteran reported sore and tender muscles again reporting that he had back pain in service but had no history of injury or trauma.  He stated the soreness and tenderness covered his whole body, including the low back, the shoulders, arms, and elbows bilaterally, the calves and his right knee.  The pain occurs almost every night although the calf pain occurred every two weeks lasting from two to three days.  He reported right shoulder surgery in 2004 or 2005 to repair a rotator cuff injury that occurred at work.  The right knee pain hurts by the way or length he sits.  The pain is intermittent with periods of remission.  The Veteran described his low back pain as moderate.  The right shoulder was in constant pain and the left shoulder was intermittent.  The Veteran also reported that he had previously been tested and all tests including an ultrasound were negative.  

On examination, the right shoulder forward motion was to 120 degrees without pain, to 135 degrees with pain.  Abduction was to 120 degrees without pain and 150 degrees with pain.  Both the internal and external rotation were to 70 degrees without pain.  The left shoulder forward motion was 130 degrees, abduction to 130 degrees and both the internal and external rotation were to 70 degrees.  The right knee had a range of motion to 120 degrees without pain.  Examination of the knee was described as normal.  The range of motion testing for the spine resulted in ranges without pain of forward flexion to 85 degrees with no pain, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotational flexion to 45 degrees.  The motor, sensor, and reflex tests were all normal.  The diagnosis was multiple joint pains with a normal examination except degenerative changes in the right shoulder.  The examiner concluded the subjective joint pain with a finding of degenerative changes in the right acromioclavicular joint was not due to service in Gulf War I.  The back had a diagnosis of subjective low back pain with a normal examination.  There was no evidence of fibromyalgia or chronic fatigue syndrome.  

In September 2009, the Veteran had a diagnosis of degenerative joint disease of the shoulders and spurs in the elbows bilaterally.  X-rays of the spine and knees were normal.  

In an October 2009, an ultrasound demonstrated a superficial thrombosis in the left lower leg below the knee.  There was no deep vein thrombosis.  A psychiatric evaluation that same month noted the Veteran had daily bilateral shoulder pain, back pain, and right knee pain.  His elbows also hurt.  He had calf pain but that was off and on, four days a week.  

In November 2009, the Veteran complained of pain in the head, shoulders, knees, and low back.  

In January 2010, the Veteran complained of sharp low back pain.   

The Veteran underwent a WRIISC evaluation in February 2010, which included complaints of low back pain and migrating arthralgia.  The Veteran was concerned the environment of his service in Iraq caused his problems.  The pains have been present since 1992.  He again reported that he sought treatment in service for low back pain and was told he had a muscle strain but has had intermittent low back pain since that time.  There were no clear aggravating or alleviating factors.  The Veteran did not have radiating pain, weakness, atrophy, or altered sensation.  

A neurologist who evaluated the Veteran determined there was no weakness, paralysis, or problems with ambulation or the gait.  The Veteran's only neurological symptoms related to irritable bowel syndrome.  He also noted there were no neurological abnormalities to suggest radiculopathy.

In the general examination, the Veteran had pain in the calves along with some distal quadriceps pain in the right lower extremity, both elbows, and the sacroiliac joint area, the right side worse than the left.  His low back pain did not radiate.  The Veteran reported his mother had a thyroid condition and fibromyalgia.  

The WRIISC evaluation also included an evaluation with a pain specialist.  The Veteran complained of total body joint pain and chronic axial low back pain with the latter being the Veteran's focus.  The Veteran stated the low back pain started in service while doing sit-ups and he was told it was a muscle strain.  Pain, however, has been present since that time with intermittent flare- ups.  The pain improves with rest and sleep and it worsens with activity.  The Veteran felt the pain was in the tissue muscle.  There were no bladder or bowel symptoms.  Medication was somewhat helpful.  The Veteran did not have any other symptoms such as fever, sweat, chills, fatigue, anorexia or unexplained weight loss.  Upon examination, the Veteran had a minimal antalgic gait but was able to do heel/toe walks.  He was tender to palpitation in the lumbar spinous process, the facet joints bilaterally, the paraspinal muscles, and the gluteus medius muscles.  He had limited hip flexion and extension.  The straight leg test was negative bilaterally.  His sensory examination was normal.  The diagnosis was likely lumbar degenerative disc disease with lumbar myofascial pain.  

In a letter dated in April 2010 to the Veteran regarding his Gulf War Registry examination, the diagnoses included intermittent myalgia of the calves, chronic low back pain, and arthralgia of the shoulders, elbows, and the right knee.  The Veteran was cautioned that any diagnosis may not be related to exposures from the Persian Gulf War.  

In a statement dated in May 2010, the Veteran reported joint and muscle pain since the Gulf War and that he had pain in the right shoulder that predated the right shoulder injury he suffered at work.  

In a January 2011 VA examination, the Veteran complained of sore and tender muscles.  He has bilateral aching calves that, in the Veteran's words, overinflate.  There are sensitive to touch with the intermittent swelling.  A work-up for deep vein thrombosis was negative and there is no family or injury history.  He has a fair response to medication.  Elevation also helps alleviate the symptoms.  The symptoms happen about twice a week and last for hours.  

He also complained of pain in both shoulders, elbows, and knees.  He had no known injury; the joints just began to ache without swelling or redness.  The Veteran reported injuring his right shoulder on the job in a tire factory but he stated he had a long history of shoulder arthralgia before the injury.  He has learned to live with it but has no explanation why he has the multijoint pain.  He experiences pain four days out of the week with moderate pain lasting up to 24 hours and any repetitive movement increases the symptoms.  

Upon examination, the Veteran was noted to have calf tenderness and his ankle jerk reflex was 1 +, but otherwise, all neurological findings for the upper and lower extremities were normal.  His elbow range of motion was 0- 140 degrees with pain.  His forearm supination was to 85 degrees and pronation to 89 degrees, both without pain.  The wrist dorsiflexion was to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation was to 45 degrees, all without pain.  For the hand, all MP joints bilaterally were to 90 degrees, 10 degrees for all PIP joints, and to 70 degrees for all DIP joints.  All were without pain.

The right shoulder flexion was to 160 degrees with pain at 160 degrees.  There were no additional symptoms or limitation with repetition.  Abduction also was to 160 degrees with pain at 160 degrees.  There were no additional symptoms or limitations with repetition.  Both internal and external rotation was to 90 degrees.  The left shoulder flexion was to 170 degrees with pain at 160-70 degrees.  There were no additional symptoms or limitation with repetition.  Abduction also was to 160 degrees with pain at 160 degrees.  There were no additional symptoms or limitation with repetition.  Both internal and external rotation was to 90 degrees.  

As to the lower extremities, the hip flexion was to 125 degrees bilaterally, extension to 30 degrees bilaterally, 45 degrees abduction bilaterally, 60 degrees external rotation, and 40 degrees internal rotation bilaterally.  All movements were without pain.  The knees had a range of motion of 0 to 140 degrees without pain and had normal stability.  The ankles had dorsiflexion to 20 degrees and plantar flexion to 45 degrees.  The toes had normal range of motion.  

The laboratory tests reported high glucose and liver function tests but the TSH factor was negative.  X-rays of the right elbow demonstrated a minimal spur at the olecranon and a spur on the left olecranon.  The right shoulder had minimal degenerative changes but the left shoulder was negative.  X-rays of the knees were negative bilaterally.  

The examiner diagnosed chronic right shoulder pain, status post rotator cuff repair and degenerative changes.  The left shoulder was diagnosed with arthralgia.  The examiner also diagnosed bilateral olecranon spurs of the elbow.  Finally, the Veteran had subjective bilateral knee pain without any objective findings.  The examiner also diagnosed myalgia in the calves which he stated was less likely than not related to service, including an undiagnosed illness, and more likely due to the Veteran's obesity, lack of physical conditioning, and the normal aging process.  The calves, right shoulder, left shoulder, elbows, and knee symptoms did not meet the criteria for an undiagnosed illness.  In the case of the right shoulder, the examiner attributed the symptoms to his post-service injury.  The left shoulder, the knees, and lower back disorder were attributed to the normal aging process.  

The examiner also provided the Veteran with an examination of the spine.  The Veteran gave a history of sit-ups during physical fitness training and the next day he experienced knots.  He had been diagnosed with a low back strain and given pain medication but that has provided little help.  No current diagnosis of the back was provided other than pain.  The Veteran asserted he has never had an X-ray of his back and he felt the problem was muscular, not bone.  He has no bladder or bowel, erectile dysfunction, or neurological symptoms.  He complained of fatigue decreased motion, and stiffness.  The pain was described as a moderate tight achy nature and was constant.  There was no radiating pain.  Upon examination, there was no objective spasm, atrophy, guarding, or pain with motion.  He had 80 degrees flexion, 20 degrees extension, 20 degrees bilateral lateral flexion and 30 degrees bilateral rotational flexion.  The examiner noted objective evidence of pain but no additional limitations.  There were no abnormal neurological findings.  X-rays of the lumbar spine were normal.  

As noted, the evidence reflects that the Veteran served in the Persian Gulf War.  Therefore, he is entitled to contemplation of 38 C.F.R. § 3.317 in adjudication of his claim.  The Veteran has complaints of pain in his lower back since service, which is not a manifestation of a diagnosed illness.  There is no evidence of a degenerative disease of the spine or of the muscle by radiological testing, laboratory testing, or clinical diagnosis.  Further, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011).  The minimum rating available for a painful low back (i.e., the lumbar spine disability) is 10 percent.  See 38 C.F.R. § 4.71a (General Rating Formula for Diseases and Injuries of the Spine Consequently, the Veteran's low back disability manifested to a degree of at least 10 percent within one year of discharge. 

In light of the above facts, the Board determines that the criteria for service connection for an undiagnosed illness manifested by low back pain have been met.  Therefore, the Veteran's claim is granted.

In a similar manner, the Veteran has made complaints of pain in his elbows, shoulders, knees, and calves.  Further, the Board finds the Veteran credible that these complaints had their onset in service or manifested themselves within a year of service.  Again, these complaints have not been attributed to any diagnosis.  The Board recognizes that at least as to the right shoulder, the VA examiner in January 2011 attributed his symptoms to the post- service injury that resulted in surgery and the Veteran now has degenerative disease.  The examiner, however, did not consider the Veteran's lay evidence that he had pain before he developed the shoulder injury necessitating surgery and as noted, the Board has already found the Veteran credible.  The examiner stated the bilateral olecranon spurs in the elbows are not related to service, but he also did not conclude that the Veteran's elbow pain symptoms are related to the spurs.  

Therefore, as the Veteran exhibited pain in the identified joints of the calves, knees, elbows and joints, and those symptoms manifested to a degree of at least 10 percent within a year after separation, the Veteran is entitled to service connection for an undiagnosed illness manifested in pain in the elbows, shoulders, knees, and calves and the claim is granted.  








ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for conduction aphasia and receptive aprosodia, filed as a claim for service connection for stuttering is granted.

Entitlement to service connection for a cognitive disorder, to include memory loss and due to an undiagnosed illness is denied.

Entitlement to service connection for headaches, to include as due to an undiagnosed illness is denied.

Entitlement to service connection for an undiagnosed illness manifested by pain in the elbows, shoulders, knees, and calves is granted.  

Entitlement to service connection for an undiagnosed illness manifested by low back pain is granted.



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs