Citation Nr: 1329667 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 06-25 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for loss of vision, to include as due to undiagnosed illness. 2. Entitlement to service connection for a noncardiac chest disability, to include as due to undiagnosed illness and to include chronic costovertebral strain. 3. Entitlement to service connection for fatigue, to include as due to undiagnosed illness. 4. Entitlement to service connection for unrefreshing sleep, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to November 1994. He received the Southwest Asia Service Medal, among other decorations. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the RO denied claims of service connection for headaches, loss of vision, fatigue, sore throat, unrefreshing sleep, noncardiac chest pains, and heartburn due to undiagnosed illness. Claims of service connection for headaches, sore throats, and heartburn and/or gastroesophageal reflux disease were granted by the RO in May and July 2013. These issues are no longer on appeal. In June 2011, the Veteran testified before a decision review officer (DRO) at the RO. A transcript of the hearing has been reviewed and is in the file. The Board remanded the appeal in March 2009 and September 2012. FINDINGS OF FACT 1. The Veteran had active military service in Southwest Asia and is a Persian Gulf veteran. 2. Loss of vision is attributable to refractive error, is not an undiagnosed illness or medically unexplained chronic multi-symptom illness of unknown etiology and is not related to a disease or injury in military service. 3. Chronic costovertebral strain was incurred in service. 4. Fatigue is attributable to service-connected PTSD. 4. Unrefreshing sleep is attributable is attributable to service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of vision have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2013). 2. The criteria for service connection for noncardiac chest pain, in the form of costovertebral strain, have been met. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for service connection for fatigue have been met. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. 4. The criteria for service connection for unrefreshing sleep have been met. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in October 2003 and July 2004 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The Veteran was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies claims of service connection for loss of vision, fatigue and unrefreshing sleep, no disability rating or effective date will be assigned. As the decision grants service connection for chronic costovertebral strain, this grant will be implemented by the RO in a later rating action, which the Veteran is free to appeal. Any absence of Dingess notice is moot. No further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In March 2009 and September 2012, the Board remanded these claims for a decision review officer (DRO) hearing; Social Security Administration (SSA) records; and new VA examinations and opinions. The Board finds that there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the statements in support of the claim are of record, including testimony provided at a DRO hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including RO personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the June 2011 DRO hearing shows the Veteran gave information regarding his claims and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran and his representative (present at the hearing) have not raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). Service Connection and Disabilities Due to Undiagnosed Illnesses Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing service connection on a direct basis generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This avenue of entitlement is not available because loss of vision, a noncardiac chest disability, fatigue and unrefreshing sleep are not listed. The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 38 C.F.R. § 3.159(a)(2) (West 2002). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., like where the condition is simple, for example a broken leg, and not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (a medical opinion was not required to prove a nexus between a service-connected mental disorder and drowning which caused death). Lay evidence may be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Veteran's DD 214 establishes that he served in the Southwest Asia Theater of operations during the Persian Gulf War. Hence, is entitled to the presumptions applicable to claims by Persian Gulf veterans. A Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (2013). Previously, VA regulations listed three disabilities as medically unexplained chronic multisystem illnesses. However, while this claim was pending, VA amended its regulations to clarify that these are only examples and that a broader array of unspecified conditions could be medically unexplained chronic multisystem illnesses. See 75 Fed. Reg. 61,995 (Oct. 7, 2010). A "qualifying chronic disability" means a chronic disability resulting from: an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). The term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "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). 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 is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. §3.117, 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). Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection on a direct basis for a disease asserted to be related to service. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 a Veteran. Nieves-Rodriguez, 22 Vet. App. 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-Rodriguez, 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"). Claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. A review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. Here, in October 2003, the Veteran filed a claim of service connection for "Gulf war syndrome." He described exposure to depleted uranium and reported fatigue, loss in vision, non-cardiac chest pains, and unrefreshing sleep. In July 2004, he referred to his separation report of medical history, stating he reported problems. In April 2005, he attended a VA appointment and complained of Gulf War Illness. In July 2005, he attended a VA appointment with Dr. G. to address his concerns. His reported symptoms included fatigue and chest pain. No vision symptoms were reported. Dr. G. noted the Veteran's exposures in service and current symptoms. She did not perform a physical examination of the Veteran and stated: "This is a diagnosis by history." The assessment was "Gulf War Illness." She stated that (at the time) the Veteran met "the Center for Disease Control criteria for Gulf War Illness," which included two of three areas of fatigue, mood-cognition, and musculoskeletal. She noted that few randomized controlled trials had been performed for this problem. She referred him to a sleep clinic and other specialists; she also recommended a supplement. In July 2005, the Veteran referred to Dr. G.'s diagnosis in his notice of disagreement. At the June 2011 DRO hearing, the Veteran stated that Dr. G. was an internationally known and respected doctor from VA on the issue of Gulf War illnesses; he summarized her report. (Transcript, p 9.) In an August 2011 VA Gulf War examination opinion, a VA physician noted that Dr. G.'s report took less than 20 minutes, the history was brief, she reiterated but did not substantiate symptoms, she deferred a physical examination, provided a diagnosis by history and then assessed Gulf War Illness. Based on his professional medical experience, the examiner explained that many times complete personal history and physical examinations often showed that signs and symptoms had well defined physical causations; "meaning that they are not 'unknown' and not a 'syndrome.'" The examiner noted his own qualifications as a physician for 43 years, professor of internal medicine and anesthesia at a local university for over 30 years, and several Board Certifications. He also had 33 years of service with the Army (active and active reserve) and participated in, conducted and managed training for military medical personnel in training for nuclear, biological and chemical warfare. His experience led him to negatively characterize Dr. G.'s overall opinion. Loss of vision The Veteran contended in an October 2003 claim that he suffered a "loss in vision" in service. He told SSA in April 2009 that he wore glasses in order to drive and see. At the June 2011 DRO hearing, he stated he first noticed blurred vision in service after returning to Germany with unit from the Persian Gulf. (Transcript, p 14.) Since 1991, he used to see people without correction, but now need glasses. Id. Even with glasses, his vision was not as good. Id. Dr. G. did not address vision in her opinion. (Transcript, p 15.) Service treatment records show the Veteran had 20/20 vision in August 1989 (see report of medical examination or RME). In December 1991, a service treatment record showed he complained his vision was blurry in the right eye, in addition to cold symptoms. The assessment was tonsillitis/blepharitis. These issues were noted again in January 1992. In August 1994, the separation RME showed 20/40 for far vision and 20/30 for near vision. He denied eye trouble on the report of medical history (RMH). Post service, the August 2007 VA examination report noted the Veteran got glasses to improve his vision in 2001, but stated blurriness started in 1991. He was diagnosed with refractive error of bilateral, compound, myopic astigmatism, but no etiology opinion was given. In February 2009, a VA optometrist again found myopic astigmatism in each eye. The Veteran refused dilation, but his ocular health was good in both eyes on an undilated examination. In June, the Veteran underwent an eye evaluation for SSA; a visual acuity test was essentially normal and he could visually move around the office with no help. In April 2011, a VA examiner noted the Veteran asserted that he "lost distance vision" with both eyes around 1997 when he was 25. However, he also stated his vision was correctable with glasses. Since 2002, his tears felt like they were burning. Since his last VA examination, his vision was worse. His eyes were exposed to smoke in the Gulf War and he believed they did not recover. He did not receive any care for this problem in service. The examiner also summarized the relevant medical records and diagnosed refractive error of bilateral compound myopic astigmatism that had not changed since the last VA eye examination. It corrected to 20/20 vision in both eyes. He also had pinguecula. The examiner stated that keratoconus could cause progression of astigmatism but he did not have keratoconus. Bilateral refractive error was unrelated to service; the examiner was unaware of an undiagnosed illness causing a refractive error. In October 2011, the examiner again noted the in service visual acuity and stated that the Veteran likely developed refractive error while on active duty, but it was a developmental issue (it would have occurred regardless of military service). He also had a pinguecula in April 2011, but it was not found in August 2007, February 2009, or February 2010. As a result, the examiner found pinguecula not related to service. In December 2012, the Veteran had diagnoses of bilateral pingeuculae; bilateral meiboian gland dysfunction; bilateral compound myopic astigmatism; and bilateral vitreous floaters. At this examination, the Veteran denied having a loss of vision, but only had history of blurred uncorrected distant vision with each eye since 1993 and blurred uncorrected near vision with each eye since 2001. It was treated with glasses. He reported getting poked in the right eye in 1990; he sought no treatment. He also reported photophobia, for which he used sunglasses, and floaters with both eyes intermittently since 1993. The examiner performed an examination and reviewed the claims file and opined that it was less likely than not that the diagnosed eye disabilities are related to his service or a disease or disability with an onset in service. The examiner, an optometrist, was unaware of any of these conditions being linked to an undiagnosed chronic multi- symptom illness. After reviewing his medical record, there was no indication that his eye conditions were related to his military service. While the specific issue regarding his eyes was "loss of vision;" the Veteran now reported he never experienced loss of vision. He currently experienced uncorrected blurred vision secondary to refractive error and his vision is corrected to being within normal limits with the use of glasses. There was no indication that refractive error was related to military service. Analysis The Veteran is competent to state that he noticed blurry or loss of vision. While he initially claimed "loss of vision," he has since clarified he did not mean total vision loss. The Board finds him to be credible in regard to blurry vision as that contention has not changed over time. His assertion as to blurry vision is assigned some weight. However, all of the medical opinion is to the effect that this is due to refractive error, a condition that is not subject to service connection. The examiner's opinion is fully articulate and supported by the evidence. Nieves- Rodriguez, 22 Vet. App. at 304. The examiner reviewed the claims file, noted pertinent facts, and provided a reasoned conclusion supported by the evidence. There is no competent opinion against the examiners opinions. Other eye disabilities, including burning tears, photophobia and floaters have been reported, but these have been associated with diagnosed eye disabilities identified long after service. There is no evidence relating these conditions to service. To the extent the Veteran is asserting burning tears, photophobia and floaters were present since service, the Board assigns the contentions no weight, such reports are inconsistent with his statements in service and when he filed his initial claim. Any current contention that these conditions were present in service would not be credible. The medical opinions have attributed the blurred or loss of vision to refractive error. Compensation is not payable for refractive error. 38 C.F.R. § 3.303(c), 4.9 (2013); See Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is possible for a disability resulting from a superimposed injury or disease occurring during active service. VAOPGCPREC 82-90 (July 18, 1990). The competent evidence shows that the Veteran does not have an eye disability that is an undiagnosed illness or a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The evidence is, thus against service connection on the basis of the presumptions afforded Persian Gulf Veterans. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Noncardiac chest pain The Veterans complaints of chest pain have been diagnosed as costovertebral strain. VA examiners have attributed this to events in service. While one examiner inexplicably described this as a benign condition, that characterization is inconsistent with the report that it is associated with pain. The weight of the evidence is to the effect that the current disability was incurred in service. Accordingly, service connection is granted. Unrefreshing sleep and fatigue The medical opinions reflect significant debate as to the etiology of the Veteran's reported fatigue and unrefreshing sleep. There are two medical opinions attributing these symptoms to the service connected PTSD. The evidence supports a finding that the Veteran has current disabilities consisting of fatigue and unrefreshing sleep. The opinions attributing these symptoms to PTSD are credible and consistent with the other evidence of record. Resolving reasonable doubt in the Veteran's favor, service connection for fatigue and unrefreshing sleep is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for loss of vision is denied. Service connection for chronic costovertebral strain is granted. Service connection for fatigue is granted. Service connection for unrefreshing sleep is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs