Citation Nr: 1334122	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  99-10 548	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUES

1.  Entitlement to an initial compensable rating for dyspepsia.

2.  Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine.

3.  Entitlement to a rating in excess of 30 percent for frostbite of the right foot with residual pain and cold intolerance.

4.  Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).

5.  Entitlement to service connection for bilateral hip pain.

6.  Entitlement to service connection for wrist pain.

7.  Entitlement to service connection for contusion, left proximal humerus.

8.  Entitlement to service connection for a skin disorder, to include as due to an undiagnosed illness.

9.  Entitlement to service connection for headaches and a brain hemorrhage, to include as due to an undiagnosed illness.

10.  Entitlement to service connection for dyspnea with exertion, to include as due to an undiagnosed illness.

11.  Entitlement to service connection for fatigue, to include as due to an undiagnosed illness.

12.  Entitlement to service connection for blurred vision with myopia and presbyopia, to include as due to an undiagnosed illness.

13.  Entitlement to service connection for dementia, to include as due to an undiagnosed illness.

14.  Entitlement to a total rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	James G. Fausone, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran had active duty from March 1979 to January 1980 and from January 31 to April 23, 1991, including service in the Southwest Asia Theater of Operations.  The Veteran also had additional service in the Army National Guard.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. 

In July 1999, a hearing was held at the RO before a member of the Board.  

The Board remanded the appeal to the RO for additional development in November 2000 and April 2003. 

In August 2004, the Board denied the issues of entitlement to service connection for a gastrointestinal disorder, a skin disorder, headaches and a brain hemorrhage, dyspnea with exertion, fatigue, blurred vision with myopia and presbyopia, and dementia, to include as due to an undiagnosed illness.  The Veteran appealed the Board's decision to United States Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion to Vacate the BVA Decision and Remand, the Court vacated and remanded the August 2004 Board decision.

In a March 2006 decision, the Board remanded the issues of entitlement to service connection for a gastrointestinal disorder, a skin disorder, headaches and a brain hemorrhage, dyspnea with exertion, fatigue, blurred vision with myopia and presbyopia, and dementia, to include as due to an undiagnosed illness to comply with the November 2005 Joint Motion.

In a July 2007 rating decision, the RO continued a 40 percent disability rating for lumbar degenerative disk disease; continued a 10 percent disability rating for frostbite of the right foot and left foot with residual pain and cold intolerance; and denied service connection for hip pain, wrist pain and a contusion of the left proximal humorous head.

In a June 2009 rating decision, the RO granted service connection for dyspepsia (previously considered as a stomach condition due to an undiagnosed illness and intestinal problems) due to medications and assigned a noncompensable disability evaluation, effective September 27, 1995.

In a December 2012 rating decision, the RO granted a higher disability rating of 30 percent for frostbite of the right foot with residual pain and cold intolerance, effective August 2, 2006.  As a higher schedular evaluation for this disability is possible on an extraschedular basis, the issue of entitlement to a rating in excess of 30 percent for frostbite of the right foot with residual pain and cold intolerance remains before the Board on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

In a January 2013 rating decision, the RO in part, continued a 50 percent disability rating for PTSD, continued an initial noncompensable rating for dyspepsia and denied entitlement to a TDIU.

The Board notes that the Veteran's claim for an increased rating for his PTSD has been characterized as one for a claim for an increased rating for an acquired psychiatric disability to include PTSD.  In recharacterizing this claim, the Board has considered a holding of the Court that, although a Veteran's claim identified schizophrenia or schizoaffective disorder only, the Board's analysis is not necessarily limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including the Veteran's description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In this regard, the Board notes that in addition to his service-connected PTSD, the Veteran had been diagnosed with depression.  As such, this issue on appeal has been characterized to consider all reported and diagnosed psychiatric disabilities in accordance with Clemons.

In June 2013, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in July 1999 was no longer employed at the Board (due to retirement) and advising him that he had a right to a new hearing before another VLJ that would decide his case.  See 38 U.S.C.A. § 7107(c) (West 2002) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal).  In a July 2013 letter, the Veteran indicated that he did not desire an additional personal hearing before the Board.

The issues of entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder to include PTSD; entitlement to service connection for contusion, left proximal humerus; entitlement to service connection for a skin disorder and dyspnea with exertion to include as due to an undiagnosed illness; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Throughout the rating period on appeal, the Veteran's dyspepsia did not cause complaints of nausea, dysphagia, pyrosis, vomiting, weight loss, anemia, hematemesis, or melena.

2.  The Veteran's service-connected degenerative disc disease of the lumbar spine is manifested by limited motion with pain, but without objective evidence of ankylosis or neurological pathology; nor was it productive of incapacitating episodes.  

3.  The 30 percent rating currently in effect is the maximum schedular rating for service-connected frostbite of the right foot with residual pain and cold intolerance. 

4. The evidence of record does not show that the Veteran's service-connected frostbite of the right foot with residual pain and cold intolerance is so exceptional or unusual that referral for extraschedular consideration by designated authority is required.

5.  The Veteran does not have a current bilateral hip disability.

6.  The Veteran does not have a current wrist disability.

7.  The most probative medical evidence of record does not show headaches and a brain hemorrhage to be etiologically related to a disease, injury, or event in service, to include as due to an undiagnosed illness, and a brain hemorrhage did not manifest within one year of separation from service.

8.  A chronic fatigue disability has been attributed to a known etiology, is not due to an undiagnosed illness and is the result of sleep deprivation related to the Veteran's service-connected acquired psychiatric disorder to include PTSD.

9.  The most probative medical evidence of record does not show blurred vision with myopia and presbyopia, to be etiologically related to a disease, injury, or event in service, to include as due to an undiagnosed illness.

10.  The Veteran does not have a current bilateral dementia disability and there are no objective indications of a qualifying chronic disability underlying any memory loss symptoms.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for dyspepsia have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7399-7346 (2012).

2.  The criteria for a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242 (2012).

3.  The claim for a rating in excess of 30 percent for frostbite of the right foot with residual pain and cold intolerance is without legal merit.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 3.321, Diagnostic Code 7122 (2012).

4.  A bilateral hip disability was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

5.  A wrist disability was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

6.  The criteria for service connection for headaches and a brain hemorrhage, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117, are not met.  38 U.S.C.A. §§ 1101, 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

7.  The criteria for service connection for chronic fatigue, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117, are not met.  38 U.S.C.A. §§ 1101, 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

8.  The criteria for service connection for blurred vision with myopia and presbyopia, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117, are not met.  38 U.S.C.A. §§ 1101, 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

9.  The criteria for service connection for dementia, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117, are not met.  38 U.S.C.A. §§ 1101, 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Given the favorable disposition of the claim for service connection for hypertension, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished.

Regarding the Veteran's claim for an initial compensable rating for dyspepsia, since this claim is the appeal of an initial rating, fully satisfactory notice was delivered after it was adjudicated.  However, the RO subsequently readjudicated the claim based on all the evidence in various supplemental statements of the case.  The Veteran was able to participate effectively in the processing of his claim.  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete notice been provided at an earlier time. 

Regarding the Veteran's increased rating claims, the RO provided notice to the Veteran in an August 2006 letter, prior to the date of the issuance of the appealed July 2007 rating decision.  This letter explained what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Regarding the Veteran's service connection claims, the RO provided notice to the Veteran in June 2006 and August 2006 letters.  The June 2006 and August 2006 letters explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  

After issuance of the June 2006 and August 2006 letters, and opportunity for the Veteran to respond, January 2013 supplemental statements of the case (SSOCs) reflect readjudication of the claim.  Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice.  See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision.  The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran.  Additionally, he was most recently afforded VA examinations in December 2006, January 2007, October 2011, November 2011 and August 2012.

In a June 2013 correspondence, the Veteran's representative contended that the VA examinations did not evaluate his claimed disabilities accurately or adequately and thus, new examinations were needed.  While the Board notes the Veteran's representative's contentions regarding the adequacy of the VA examinations, the Veteran gave an accurate history regarding the disabilities at issue during these examinations and recounted his relevant symptomatology for the disabilities.  After receiving this information, the examiners performed a thorough physical and conducted necessary diagnostic tests related to the Veteran's disabilities.  The examiners documented these actions in detail in their examination reports.  As such, the Board finds that the December 2006, January 2007, October 2011, November 2011 and August 2012 VA examinations are adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). 

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 
 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 


I.  Increased Ratings

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. §4.7 (2012).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012).

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of back pain and hip pain.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal.

The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.


A.  Entitlement to an initial compensable rating for dyspepsia

The Veteran is in receipt of a noncompensable initial evaluation for dyspepsia under Diagnostic Code 7399-7346, effective September 27, 1995.  38 C.F.R. §§ 4.20 , 4.27 (2012) (when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding "99" for the unlisted condition).

Diagnostic Code 7346 (hiatal hernia) assigns a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation with less severity.  A 30 percent rating for a hiatal hernia is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent rating is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114.

A noncompensable evaluation is assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Dyspepsia is defined as impairment of the power or function of digestion; usually applied to epigastric discomfort following meals.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 576 (30th ed. 2003).  Thus, the Board finds that the Veteran's symptoms of dyspepsia are analogous to recurrent epigastric distress described under Diagnostic Code 7346.

On VA examination in October 1997, the Veteran reported experiencing no gastrointestinal symptoms.  

The Veteran underwent a VA examination in January 2007.  He presented with complaints of stomach problems as he indicated that he experienced pains that came and went.  He had been placed on medications but had not been taking any of the medications at the time as he was afraid that they would cause him some problems.  His stomach seemed to be upset intermittently and occurred 1 to 2 times a week.  During these periods, he would not be able to sleep and his stomach pain was "dull" and "achy".  No diarrhea was noted at the time.  On examination, his abdomen was soft and no mid-epigastric tenderness was found.  There was no organomegaly.  His abdomen was obese, soft, nontender and bowel sounds were present in all 4 quadrants.  No costovertebral angle tenderness was noted at this time.  The assessment was consistent with dyspepsia that was aggravated by medications presently.

The Veteran underwent a VA examination in November 2011.  On examination, his abdomen was normal on inspection, auscultation and percussion.  It was soft and nontender to palpitation with no hepatosplenomegaly noted.  The diagnosis was mild dyspepsia as reported by the Veteran.  The examiner noted that the Veteran's symptoms were not of sufficient frequency or severity to be considered a chronic disability or illness as it was not outside the range of normal.  Additionally, the Veteran's heavy chewing tobacco habit was a likely causative factor for these symptoms.

The Veteran underwent a VA examination in August 2012.  The examiner noted that the Veteran had a diagnosis of dyspepsia with an unknown date of onset.  His treatment plan did not include taking continuous medication.  He had no reoccurring symptoms that were not severe, no recurring episodes of severe symptoms, no abdominal pain, no anemia, no weight loss, no nausea, no vomiting, no hematemesis and no melena.  He did not have incapacitating episodes due to his stomach condition.  There were no other significant tests or results.  His stomach condition did not affect his ability to work.  The examiner noted that the Veteran's only complaint was the rumbling stomach noises.  He took no medication and had no physical symptoms that interfered with his activities of daily living.

Based on the objective clinical findings, the Veteran's disability picture is most consistent with the currently assigned noncompensable disability evaluation for his service-connected dyspepsia disability.  The objective clinical evidence of record does not show his dyspepsia causes symptoms of recurrent pyrosis and dysphagia, without regurgitation, or substernal, arm, or shoulder pain.  In addition, the Board notes that the Veteran's 2 most recent VA examinations in November 2011 and August 2012 have demonstrated that the Veteran has minimal symptoms associated with his service-connected dyspepsia which did not interfere with his activities of daily living.  Significantly, the November 2011 VA examiner noted that the Veteran's symptoms were not of sufficient frequency or severity to be considered a chronic disability or illness as it was not outside the range of normal while the August 2012 VA examiner indicated that the Veteran's only complaint was the rumbling stomach noises.  Accordingly, his symptomatology most closely fits within the criteria for the currently assigned noncompensable rating.  See 38 C.F.R. § 4.114, Diagnostic Code 7346.

B.  Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine.

Factual Background and Analysis

In this case the Veteran asserts an increased rating for his service-connected degenerative disc disease of the lumbar spine is warranted.  The Veteran was granted service connection for a lumbar spine disability at a 40 percent disability rating pursuant to Diagnostic Code 5237 (spinal fusion).

Regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the rating criteria for evaluating disabilities of the thoracic, lumbar, and cervical spine.  Effective from September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes).

Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent evaluation is assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012).

For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012).  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  Id.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id. 

Spine conditions rated under Diagnostic Code 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes.  The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months.  A percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

"Incapacitating episodes" was defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate Diagnostic Codes if it would result in a higher combined evaluation for the disability. 

The Veteran's increased rating claim was submitted in August 2006.

The Veteran underwent a VA examination in July 2007.  The Veteran's back pain was centrally located without any radiation.  He did not use any kind of back brace or cane.  He did not have any bowel or bladder control issues.  He walked unaided and could walk 100 feet before having to stop because of pain.  On examination, there was no abnormal scoliosis.  There was no localized pain or spasm.  Deep tendon reflexes were only 1+ in both lower extremities.  He had normal extensor halluces longus strength and normal lower extremity strength.  Forward flexion was 0 to 40 degrees.  Extension was 0 to 15 degrees.  Left and right lateral flexion and left and right lateral rotation was 0 to 20 degrees.  The Veteran complained of pain throughout all of these motions and refused to repeat these motions because of pain.  There was no foraminal narrowing.  X-rays revealed mild degenerative changes.

The Veteran underwent a VA examination in August 2012.  The Veteran reported flare-ups of the thoracolumbar spine as he had muscle spasms that "lock me up" and "almost make me bend over".  He had difficulty getting his shoes on.  Forward flexion was from 0 to 35 degrees.  Extension was from 0 to 10 degrees.  Right and left lateral flexion was 0 to 15 degrees.  Right and left lateral rotation was from 0 to 10 degrees.  The examiner noted that the Veteran was morbidly obese with a large abdominal girth which interfered with adequate range of motion.  He was able to perform repetitive use testing with 3 repetitions.  He had additional limitation in range of motion following repetitive use as he had less movement than normal and pain on movement.  He had localized tenderness or pain to palpitation.  He did not have guarding or muscle spasm of the thoracolumbar spine.  Muscle strength testing was 5/5 in all categories and he did not have muscle atrophy.  His reflex and sensory examinations were normal and his straight leg raising test was negative.  He had no radicular pain or any other signs or symptoms due to radiculopathy.  He had no other neurologic abnormalities or findings related to his back condition.  He did not have intervertebral disc syndrome of the thoracolumbar spine.  He did not have a vertebral fracture.  The examiner noted that pain was reported by the Veteran for the limitation of motion in all planes.  Minimal pain behaviors were observed and heard throughout the evaluation of range of motion.

Considering the pertinent evidence, the Board finds that a rating greater than 40 percent for the Veteran's lumbar spine disability is not warranted.

First addressing the General Rating Formula, the Board notes that, none of the evidence of record indicates that the Veteran's thoracolumbar spine is ankylosed.  None of the outpatient treatment records indicate that the Veteran's thoracolumbar spine is ankylosed.  Additionally, the Veteran has not claimed that his thoracolumbar spine is ankylosed.  Unfavorable ankylosis of the thoracolumbar spine has not been shown, as required for the next higher, 50 percent rating.

Specifically as regards the DeLuca factors (identified and addressed above), the Board notes that all of the VA examiners noted that pain was associated with all range of motion findings.  However, as indicated, the criteria under the General Rating Formula are applied with or without symptoms such as pain, and during the examinations, the Veteran was able to accomplish the range of motion indicated above.  No ankylosis of the spine, however, was found.  In short, the 40 percent rating appropriately compensates the Veteran for his pain and other DeLuca factors provide no basis for assignment of any higher rating.

Overall, the Board finds that the medical evidence is consistent with no more than a 40 percent rating under the General Rating Formula.  Since the medical evidence does not support the assignment of the next higher, 50 percent, rating under the General Rating Formula, it logically follows that no higher rating under the General Rating Formula is assignable.  In reaching this conclusion, the Board has considered the Veteran's complaints on examination, but does not find them more probative than the objective medical findings.

The Board also notes that, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected low back disability.  The Board notes however, that multiple VA examinations have found that that the Veteran had no neurological abnormalities associated with his lumbar spine disability which included radiculopathy and/or bowel and bladder impairment.  

Finally, the revised criteria set forth a Formula for Rating intervertabral disc disease on the Basis of Incapacitating Episodes.  The Board notes that for the purposes of evaluating intervertabral disc disease based on incapacitating episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertabral disc disease that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Here, the August 2012 VA examiner specifically noted that the Veteran did not have intervertebral disc syndrome.  Accordingly, the Formula for Rating intervertabral disc disease on the Basis of Incapacitating Episodes is not for application.

For all the foregoing reasons, the Board finds that the claim for higher rating must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.

C.  Entitlement to a rating in excess of 30 percent for frostbite of the right foot with residual pain and cold intolerance.

The Veteran's increased rating claim was submitted in August 2006.

As noted above, a December 2012 rating decision, the RO granted a higher disability rating of 30 percent for frostbite of the right foot with residual pain and cold intolerance, effective August 2, 2006 under Diagnostic 7122.  

Under Diagnostic Code 7122 for cold injury residuals, a maximum rating of 30 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis).

Neither the Veteran nor his representative have identified any other rating criteria that would provide a higher rating or an additional rating.  The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2012) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The Board finds no other applicable rating criteria that would provide a higher rating or an additional rating.

As will be addressed further below, the Board has considered whether there is any other schedular basis for granting the claim but has found none.

Accordingly, a 30 percent rating is clearly the maximum rating assignable for the Veteran's frostbite of the right foot with residual pain and cold intolerance.  An increased schedular rating is therefore not available. 

Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

D.  Extraschedular Rating

The Board has also considered the potential application of other various provisions, evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected dyspepsia, degenerative disc disease of the lumbar spine and frostbite of the right foot with residual pain and cold intolerance is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for service-connected dyspepsia, degenerative disc disease of the lumbar spine and frostbite of the right foot with residual pain and cold intolerance.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted.


II.  Service Connection

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

If psychosis or a brain hemorrhage become manifest to a degree of 10 percent within one year of separation from active service, then they are presumed to have been incurred during active service, even though there is no evidence of these diseases during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.317 , service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a) (1) (2012)). 

For purposes of 38 C.F.R. § 3.317 , there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d)  warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a) (5) (2012); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a) (2) (ii) (2012).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. §3.317(a) (3) (2012).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b) (2012). 

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a) (4) (2012).

A.  Entitlement to service connection for bilateral hip pain and wrist pain

Factual Background and Analysis

As these issues have similar factual backgrounds and analyses, they will be addressed together.

The Veteran's service treatment records noted that the Veteran presented with complaints of hip pain in May 1979.

The Veteran's January 1980 separation examination was negative for complaints or diagnoses related to his hips or wrists.

An April 1996 general VA examination was negative for complaints or diagnoses related to his hips or wrists.

The Veteran underwent a VA examination in October 1997.  The examination was negative for complaints or diagnoses related to his hips or wrists.

In January 2004, the Veteran presented with complaints of a bump and some soreness on the dorsum of his left hand.  The physician noted that it "really doesn't affect the wrist area".  The diagnosis was a 2mm mass dorsum of the left hand that appeared to be between the joint spaces.

On a Field Examination Report in July 2004, the Veteran indicated that he was suffering from many physical ailments including blurred vision, muscle cramps, shortness of breath, headaches, low back pain and chronic fatigue.  The Veteran made no references pertaining to his hips or wrists.

The Veteran underwent a VA examination in November 2011.  The Veteran presented with complaints of pain in his shoulders and wrists.  He did not describe having problems with his feet, ankles, knees, hips or elbows.  He noticed that if he was working he got pain in his wrists and shoulders.  He indicated that he did not have any injuries to his wrists.  Examination of the feet, ankles, hands and wrists showed no acute or chronic swelling or deformity.  The diagnosis was bilateral wrist arthralgia.  The left wrist x-ray was normal and the right wrist x-ray reported a likely triquetral avulsion fracture.  The wrist arthralgias were a physiological response to prolonged use.  History, examination and x-rays do not identify any disease, disability or disability pattern.

Under the circumstances of this case, the Board concludes that service connection is not warranted for bilateral hip pain and wrist pain disabilities as the Veteran has not been shown to have a current bilateral hip pain and wrist pain disabilities.

As noted above, the VA treatment records have demonstrated that the Veteran has at times reported hip pain and wrist pain.  However, the Board notes that mere pain, alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356  (Fed. Cir. 2001).

The Board notes that the November 2011 VA examiner diagnosed the Veteran with bilateral wrist arthralgia.  However, arthralgia is defined as "pain in a joint." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 152 (31st ed. 2007).  In light of such definition, the Board finds that the notation of arthralgia is not competent evidence of a wrist disability.  See Sanchez-Benitez, supra.  

Accordingly, the medical evidence of record does not support a current diagnosis of the claimed bilateral hip and wrist pain disabilities. 

Hence, whereas here, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the instant appeal, the claims for service connection for a bilateral hip and wrist pain disabilities must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met.

B.  Entitlement to service connection for headaches and a brain hemorrhage; blurred vision with myopia and presbyopia; and dementia, to include as due to an undiagnosed illness.

Factual Background

The Veteran contends that he experiences, headaches, blurred vision, and dementia as a result of his active military service.  More specifically, he believes that all of these conditions are a result of undiagnosed illnesses incurred during his service in the Persian Gulf War. 

As noted above, the Veteran had active military service from March 1979 to January 1980.  He was a member of the Army National Guard on active duty from January 31 to April 23, 1991 in Southwest Asia. 

A review of the service treatment records for both periods of active service show that he was involved in two automobile accidents during his first period of service.  Except for lumbar pain, for which service connection has already been established, there were no specific complaints or abnormalities referable to any of the current disabilities now at issue from the first accident in July 1979.  The Veteran did not receive any immediate medical treatment after the second motor vehicle accident in November 1979, apparently because he had been incarcerated.  He was seen several days later complaining of a slight headache.  At that time, he reported that he had no recollection of the accident and thought that he might have hit his head and lost consciousness.  The records indicated that alcohol was involved in both accidents.  Neuropsychiatric findings were essentially normal and there was no evidence of dizziness or visual abnormalities. 

He was seen on a couple of occasions during service for headache and body aches, difficulty breathing, and nausea, all associated with viral syndrome.  On a Report of Medical History for release from active duty in January 1980, he reported a history of a head injury, dizziness, swollen or painful joints, shortness of breath, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble.  He also reported a history of drug and alcohol treatment.  On examination, the physician indicated that there was no evidence of any residuals from the two automobile accidents.  Except for class I acne on the trunk, no pertinent abnormalities were noted on examination at that time. 

On Reports of Medical History for enlistment in the Army National Guard in June 1984, on periodic examinations in March 1988 and February 1991, on a redeployment examination in April 1991, and on a periodic examination in July 1992, the Veteran specifically denied any problems associated with dizziness, headaches, eye trouble, head injury, shortness of breath, trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness, and no pertinent abnormalities were noted on any of the above examinations. 

When examined by VA in April 1995, the Veteran complained of severe fatigue, short-term memory loss, and generalized joint pain.  On examination, there was slight inspiration wheezing, bilaterally, no rhonchi or rales, normal muscle tone, strength, reflexes, and range of motion in the shoulders, no rash, and a 3-x-4 inch area of old scarring on the left lower leg with no hair growth. 

A VA MRI of the brain in April 1995 showed a small area of hemorrhage in the medial aspect of the left temporal lobe with no associated enhancement or edema.  The radiologist indicated that the hemorrhage had the typical appearance of a cavernous malformation which appeared to have hemorrhages of different ages and was not indicative of a tumor.  He opined that while it could be post-traumatic in nature, it would be unusual as there were no other areas of injury. 

VA psychological testing in April 1995 indicated multifocal dysfunction, most likely involving the left temporal and right frontal areas.  The examiner indicated that the test results suggested multifocal dysfunction, most likely involving the left temporal and right frontal areas, and that the cause of the deficits was unknown.  The diagnosis was dementia. 

A VA eye examination in June 1995 found no evidence of any visual impairment.  Distant and near visual acuity was 20/20; the remainder of the eye examination was within normal limits.  The examiner indicated that he saw no evidence of any eye pathology or disorder.  He opined that if the Veteran had any eye problem, it was secondary to some other medical problem in the body. 

VA Pulmonary function studies in June 1995 showed evidence of mild airway obstruction suggestive of small airway disease.  Upper gastrointestinal (UGI ) series in July 1995 were within normal limits. 

A VA outpatient note in October 1995 showed that the Veteran was seen for depression, sleep disturbance, headaches, and heartburn symptoms.  The assessment was "depression, sleep disturbance, headaches, heartburn, etc." 

When examined by VA in April 1996, there were no abnormal ophthamalogical findings, and no abnormalities involving the respiratory or digestive system.  There were no neurological abnormalities.  

The Veteran also complained of headaches two to three times a week lasting for about an hour.  Bright light bothered his eyes and bending made his headaches worse, but he denied any photo- or phonophobia.  Ibuprofen seemed to help.  The diagnoses included headaches of unknown etiology. 

On VA psychiatric examination in March 1997, he had good concentration and eye contact.  He was well oriented, and his mood was normal.  His general fund of knowledge was fair, and his insight and judgment were good.  The diagnoses included PTSD, Persian Gulf Syndrome, and mild dementia.  

On VA psychiatric examination in September 1997, he reported a decrease in his concentration and ability to work secondary to his PTSD.  The impression included PTSD, mild; history of dementia and dysthymia, and history of alcohol dependence in sustained remission. 

VA eye examination in October 1997 showed uncorrected visual acuity of 20/20, bilaterally, with no evidence of diplopia and normal visual fields.  The diagnoses included normal eye examination with few old corneal scars. 

During an October 1997 VA medical examination, the Veteran denied any head injury from the automobile accidents in service.  He was self-employed as a mechanic and reported that he worked 10 hours a day, 7 days a week, doubling as a truck driver on occasion.  He reported recurring red bumps predominantly on his chest beginning the past summer and occasional skin changes on both lower extremities.  He denied any current or past history of gastrointestinal symptoms, and reported muscle aches in his shoulders, neck, and upper extremities after working long hours. 

On examination, lungs were clear to auscultation and percussion.  Strength, sensation to touch, and cerebella function in the upper extremities were normal.  A chest x-ray was normal.  The assessment included tension headaches and moderate exogenous obesity.  The examiner commented that there were no clinical indicators of muscle pain or fatigue.  He opined that the Veteran's complaints of shortness of breath with exertion were secondary to exogenous obesity and lack of regular cardio aerobic exercise. 

On VA neuropsychological examination in November 1997, the Veteran reported a history of memory loss but denied any history of head trauma or current symptoms of anxiety or tension.  Neuropsychological screening did not suggest any significant organic cerebral impairment.  The diagnosis on Axis I was: no disorder.  The examiner commented that cognitively, the Veteran functioned at least within normal limits and did not require any special accommodations.  He opined that many of the Veteran's symptoms were consistent with sleep apnea. 

VA medical records associated with the claims file in April 1998 showed that the Veteran was treated for various maladies on numerous occasions from 1993 to 1997.  In June 1993, the Veteran was seen for fatigue and a chronic cough.  The Veteran specifically denied any shortness of breath.  There was no evidence of any skin rash and his lungs were completely clear.  The impression included chronic fatigue, etiology not evident.  A VA mental health note in December 1997 included the diagnoses of mild dysthymia and somatoform disorder, not otherwise specified. 

Copies of private medical records received in April 1998 show that the Veteran was seen for numerous maladies, including a right eye injury and left shoulder pain from 1985 to 1995.  

The Veteran testified at a personal hearing at the RO in July 1999.  He described his experiences in the Southwest Asia Theater, including being in thick, dense smoke from oil burning fires most of the time.  He testified that all of his current symptoms began about six months after he returned from the Persian Gulf.  His wife also testified about the Veteran's physical problems after returning home from service. 

A private chest x-ray report in February 2000 showed increased perihilar vasculature versus early infiltrate. 

In a letter dated in March 1998 and received in March 2001, the Veteran's wife stated that the Veteran had difficulty sleeping and suffered from nightmares after his return home from the Persian Gulf.  He also had recurring sores and rashes all over his legs and stomach, had a short temper, and very painful headaches.  She also described the Veteran's memory difficulties. 

On VA neurological examination in November 2002, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's medical history and current symptoms.  The examiner opined that the Veteran's migraine headaches and cavernous malformation of the brain were not related to the motor vehicle accidents in service. 

A private neuropsychological report in March 2003 indicated that testing revealed primarily average functioning with the exception of verbal memory and expressiveness.  The findings were consistent with those of other Persian Gulf Veteran's.  He opined that the Veteran's predominantly left hemisphere difficulties may reflect the left hemisphere hemorrhage.  The diagnoses included cognitive disorder, not otherwise specified. 

VA eye examination in March 2003 showed uncorrected distant vision of 30/30, bilaterally, corrected to 20/20, bilaterally.  The remainder of the clinical findings were negative.  The assessment included myopia and presbyopia, and new glasses were ordered. 

VA neurological examination in June 2003 was essentially normal.  The examiner indicated that a CT scan in April 2003 revealed a calcified area in the left anterior temporal lobe.  The neurologist recommended a repeat MRI to see if there was any interval change. 

A VA MRI of the brain in August 2003 revealed a 1-cm properly circumscribed area of increased signal in the medial temporal lobe on the left abutting on the middle cerebral artery compatible with a history of aneurysm and suggestive of a thrombosed aneurysm. 

A VA neurological report in September 2003 indicated that a repeat MRI showed a 1-cm area in the left anteromedial temporal region butting the takeoff of the middle cerebral artery.  There was a ring of hemosiderin about the area but no evidence of edema or mass effect.  An MRI angiogram did not show filling of the area, suggesting that it might be a thrombosed aneurysm.  The neurologist opined that all of the Veteran's symptoms might be related to the left hemispheric abnormality. 

A VA neurosurgeon in October 2003 offered the impression of probable aneurysm of the left middle cerebral artery, possibly a hemorrhage of a small medial perforating branch of the middle cerebral artery. 

Additional private and VA medical records were received from the Veteran in January 2004.  Private pulmonary function studies in March 2003 showed minimal obstructive lung defect. 

The diagnoses on VA psychiatric examination for PTSD in April 2004 included PTSD, cognitive disorder, not otherwise specified, and alcohol dependence in sustained full remission.  The examiner commented that previous neuropsychiatric tests showed essentially average functioning with the exception of verbal memory and verbal expressiveness.  The examiner also noted that the Veteran had a left hemisphere hemorrhage that apparently occurred in 1994. 

The Veteran underwent a VA examination for mental disorders in September 2004.  He reported that since his time in the Persian Gulf, he struggled with emphysema transient rashes, pain in his joints, stomach cramps, headaches and back pain.  The diagnosis was PTSD and multiple problems that he related to his claimed Desert Storm syndrome.

The Veteran underwent a VA examination for mental disorders in December 2006 for assessment of brain functioning.  The Veteran noted daily headaches that had been ongoing for 12-13 years.  He also noted shortness of breath and some sleep difficulties.  He also became fatigued if he was in a low stimulation situation which suggested some sleep apnea.  He noted depression "on and off" and noted depression since 1991.  The diagnosis was mood disorder associated with pain complaints (depression).  The examiner noted that "clearly, the test results suggest that the patient does not suffer from dementia".  Instead, cognitive disorder not otherwise specified (NOS), secondary to depression would be more appropriate.  The examiner noted that the cognitive inefficiency would likely improve if there was improvement in his emotional status.  The examiner also noted that the Veteran's depression appeared to be related to his pain complaints.  To the extent that his pain problems were related to service, his depression problems would also be related.  The examiner emphasized again that the Veteran did not suffer from dementia and his episodic memory problems likely would improve if he pursued treatment for his depression.  

A December 2006 VA optometry note indicated that the Veteran had myopia with presbyopia which most likely accounted for his blurred vision.

The Veteran underwent a VA examination in January 2007.  Regarding the Veteran's headaches, the Veteran reported experiencing headaches since he returned home from the Persian Gulf.  He indicated that when he had headaches, they seemed to come and go and were accompanied by blurred vision.  On examination, the Veteran was assessed with angioma, hemangioma left temporal lobe.  The examiner opined that it was less likely than not that this condition was related to any service connected problems related to his time spent in the Persian Gulf.  This was not an undiagnosed illness.  These are usually genetic malformations and can be aggravated by trauma such as a motor vehicle accident.  Therefore, it was unlikely that this condition was related to anything noted during the Veteran's time in the Gulf War.  Concerning the Veteran's headaches, the current diagnosis was muscle tension cephalalgia with questionable relationship to the lesion of the temporal area.  The only extra symptomatology noted was blurred vision.  The Veteran's headaches were related to his muscle tension type cephalalgia and to a temporal lesion.  

Regarding his claimed fatigue, approximately 30 to 40% of his routine daily activities were affected by him being fatigued and tired.  The assessment was fatigue.  The examiner opined that it was less likely than not that the Veteran's chronic fatigue was related to the 3 months he spent in the Persian Gulf.  The examiner noted that the Veteran had no complaints of chronic fatigue with his examination in 1997 which was 6 years after his time in the Gulf War.  The Veteran's complaints of fatigue were also vague.  Regarding his seizure disorders, laboratory evaluation showed no direct etiology of his fatigue at the time.  With no complaints of fatigue after 6 years after his exposure, it was less likely than not that the chronic fatigue was related to any exposure of any problems noted in his Gulf War tenure.  The examiner noted that the Veteran did have non-restorative sleep patterns as he only slept for very short periods of time which was related to other joint pains.  This could very well be the cause of his fatigue, sleepiness and tiredness during the day.  

The Veteran underwent a VA vision examination in October 2011.  The examiner noted that a review of the claims file demonstrated a long history of blurred vision since serving in the Persian Gulf War.  He had developed myopia and presbyopia in each eye correctable to 20/20 in each eye with glasses.  The examiner noted that this blurred vision did not start developing until around 2004 and was not related to his military service.  The examiner also noted that the Veteran had a history of a lesion in his left temporal lobe which was found on an MRI of the brain in April 1995.  A slight superior defect was found today in the superior field of the right eye.  The defect crossed the vertical midline and was only found in one eye and was therefore not related to the defect found on the MRI.  Since the lesion was post-chiasmal, it would cause a homonymous (in both eyes) visual field cut.  The visual field loss is more than likely secondary to brow or upper eye lid.

The Veteran underwent a VA examination in November 2011.  The examiner diagnosed the Veteran with chronic headaches.  He noted that a prior neurosurgery consultation did not attribute the headaches to the abnormality on a brain MRI that was likely a thrombosed aneurysm.  The Veteran did not have a brain hemorrhage or a stroke as they were not identified by the consulting neurologist or neurosurgeon.  His previously diagnosed nocturnal hypoxia was also contributing to his headaches.  The Veteran's headache condition had a clear and specific etiology and diagnosis since his history and the current examination was consistent with this diagnosis.

Regarding the Veteran's claimed fatigue disability, the examiner noted that the Veteran declined a sleep study.  He did have an overnight oximetry done in 2008 that showed severe nocturnal hypoxia.  Hypoxia was a significant cause of daytime fatigue.  He also had poor sleep hygiene, a heavy chewing tobacco habit and PTSD with dysthymia and depression which were all significant causes of sleep disturbances and subsequent fatigue.  He was also on several medications that could cause fatigue.  Thus, the Veteran's fatigue was multifactorial and had a clear and specific etiology and diagnosis.

The Veteran had complaints of blurred vision with myopia and presbyopia which began in 2004.  This was long after and not related to any military service or any active duty exposures.  These conditions were found in normal individuals as they age and have a clear and specific etiology and diagnosis.

The examiner indicated that the Veteran did not have dementia.  A history and the examination did not show findings of dementia.  The Veteran described day to day difficulties similar to what the average person experienced but nothing which suggested dementia.  Neuropsychological testing in 2003 showed mostly average results.  A November 2011 examination also noted a decline in spatial recall, poorer attention skills and difficulty naming objects when compared with the results of 2003.  Given that the other tests were average, these findings did not constitute a diagnosis of dementia.  The examiner also noted that the Veteran's fatigue, sleep issues, nocturnal hypoxia, psychological conditions and medications could all affect cognitive testing results.  The examiner did not find any evidence in the medical record that any cognitive disorder dated back to his military service.  Thus, the few impairments noted on testing were less likely than likely due to any event on active duty and more likely to the multiple factors as described above.

The examiner noted that the examination did not identify a chronic disability pattern.  Several of the claimed symptoms had a clear and specific etiology and diagnosis.  The other symptoms were physiologic and were not pathological or abnormal.  The examiner opined that it was less likely that the conditions with clear and specific etiologies and diagnoses were due to or related to a specific exposure event during the Veteran's service in Southwest Asia.  The examiner noted that April 1991 and July 1992 Reports of Medical History completed by the Veteran for his National Guard physicals were negative for the claimed symptoms.  The examiner also found no records that showed any of the conditions dating back to service and he was not aware of any medical literature that associated any of the above conditions to any kind of exposure event.

Analysis

As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case.

Based on the above evidence, the Board finds that service connection for headaches and a brain hemorrhage; fatigue, blurred vision with myopia and presbyopia; and dementia is not warranted.  

1.  Headaches and a brain hemorrhage

The Board notes that the Veteran has a current diagnosis of chronic headaches, a thrombosed aneurysm and nocturnal hypoxia.  However, the Board finds that the record does not establish that the Veteran's chronic headaches disability is related to his military service.  

In this regard, the Board first observes that the Veteran's headaches and a brain hemorrhage are not related to an undiagnosed illness, as the disorders do, in fact, carry a diagnosis.  For the Veteran's headache disorder to be due to an undiagnosed illness, the symptoms would have to be not attributable to another, specific cause.  The undiagnosed illness recognized as being associated with Persian Gulf War service does not cause other diagnosed disorders, but various symptoms for which a diagnosis cannot be determined.  Only if such symptoms are not related to a diagnosed disorder, i.e., head pain not due to chronic headaches, may they be said to be due to undiagnosed illness.  Chronic headaches a thrombosed aneurysm and nocturnal hypoxia are not undiagnosed illnesses or medically unexplained chronic multi symptom illnesses.   

Thus, while the Veteran contends that his headaches are the result of an undiagnosed illness incurred in Southwest Asia, the Veteran did not have multisymptom medically undiagnosed illness as the November 2011 VA examiner specifically determined that the Veteran's headache condition had a clear and specific etiology and diagnosis since his history and the current examination was consistent with this diagnosis.  As this disorder has been diagnosed, the Board concludes that the special provisions pertaining to undiagnosed illnesses are not applicable, and service connection for chronic headaches and brain hemorrhage cannot be granted under the presumptive provisions of 38 U.S.C.A. §1117 and 38 C.F.R. § 3.317.  See 38 C.F.R. § 3.317 (2012).

In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 are warranted.  See Combee v. Brown, 34 F.3d 1039, 1042   (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure).  Thus, the presumption is not the sole method for showing causation.  However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability.

The Board notes that there is conflicting evidence as to whether the Veteran has a brain hemorrhage as the October 2011 VA examiner concluded that the Veteran did not have a brain hemorrhage while an MRI in April 1995 revealed a brain hemorrhage.  Regardless, when affording the Veteran the benefit of the doubt the Board finds that the Veteran had a brain hemorrhage.  

Accordingly, as the Veteran has a diagnosis of a brain hemorrhage, the Board again notes that if a brain hemorrhage becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a brain hemorrhage during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

As determined above, the first element of service connection is satisfied as the Veteran has a diagnosis of chronic headaches, a thrombosed aneurysm and nocturnal hypoxia.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).  

In this regard, the Board notes that there is no medical evidence of treatment for the Veteran's brain hemorrhage/thrombosis during the Veteran's active military service or within the one-year presumptive period following discharge from active military service in April 1991.

The first evidence of a brain hemorrhage was noted on an MRI in April 1995.  At that time, the radiologist indicated that hemorrhage had the typical appearance of a cavernous malformation which appeared to have hemorrhaged at different ages.  He opined that while it was conceivable that it could be post-traumatic in nature, it would be somewhat unusual as there were no other areas of injury in the brain.  In November 2002, a VA neurologist reviewed the claims file and examined the Veteran for the specific purpose of determining the etiology of his headaches and brain hemorrhage.  The examiner opined that the Veteran's headaches and brain hemorrhage were not related to a head trauma.

Thus, onset of a brain hemorrhage is not demonstrated at any time within the Veteran's first year following his separation from service; therefore service-connection for a brain hemorrhage disability may not be presumed under the provisions of 38 C.F.R. § 3.307 and § 3.309(a).

Regarding direct service connection, the Board notes that the Veteran's service treatment records indicated that in 1979 he presented with complaints of a slight headache days after being involved in a motor vehicle accident.  Neuropsychiatric findings were essentially normal and there was no evidence of dizziness or visual abnormalities.  The Veteran was seen on a couple of occasions during service for headache and body aches, difficulty breathing, and nausea, but these were all associated with viral syndrome.  

Additionally, the Veteran reported a number of symptoms at the time of his separation from his initial period of service in January 1980.  However, no pertinent abnormalities were found on examination at that time.  Furthermore, the Veteran specifically denied any history of headaches at the time of his entrance examination into the Army National Guard in June 1984.  Moreover, no pertinent abnormalities were noted on examination at that time, or at any time during his active military service in 1991.  The Board finds it significant that the Veteran specifically denied any problems referable to the disabilities now at issue on appeal at the time of his separation examination in April 1991, and again on a periodic examination for National Guard service in July 1992, more than one year after his discharge from active service.  Although he now asserts that all of his disabilities began within a couple of months after returning home from Southwest Asia, his service medical records do not reflect any problems within the first 15 months of his separation from active service. 

Additionally, the first reported complaint associated with any of the disabilities on appeal was in June 1993 when he complained of fatigue.  He made no mention of any problems related to his headaches.  

Thus, while the Veteran presented with in-service complaints of headaches, these complaints were medically addressed in service, and appear to have been of an acute and transitory nature, as multiple periodic examinations and separation examinations were normal for all items and no disorders related to headaches were recorded.  

Notably, while the Veteran contends that his headaches began a few months after his service in the Persian Gulf, the Board notes that the Veteran was not diagnosed with a headache disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a headache disability.  Thus, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  

Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between current headaches and a brain hemorrhage and the Veteran's military service.  In fact, the January 2007 VA examiner opined that it was less likely than not that this condition was related to any service connected problems related to his time spent in the Persian Gulf.  Additionally, the November 2011 VA examiner concluded that it was less likely that the conditions with clear and specific etiologies and diagnoses were due to or related to a specific exposure event during the Veteran's service in Southwest Asia.

Neither the Veteran nor his representative has identified, presented, or alluded to the existence of a medical opinion that establishes a relationship between headaches and a brain hemorrhage disability and service.

As there is no competent opinion linking the current disability to service, the preponderance of the evidence is, therefore, against the claim for entitlement to service connection for headaches and a brain hemorrhage on a direct basis.

In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's headaches and a brain hemorrhage was not shown in active service or for several years thereafter, and his currently diagnosed headaches and a brain hemorrhage has not been shown by competent medical evidence to be etiologically related to his active service.  In addition, as the Veteran's disability has been diagnosed as chronic headaches, a thrombosed aneurysm and nocturnal hypoxia, and hence, has been attributed to a diagnosed disorder, the Veteran may not avail himself of the presumption pertaining to undiagnosed illness as set forth in 38 C.F.R. § 3.317.  Accordingly, service connection for a headaches and a brain hemorrhage disability is not warranted on any basis. 

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

2. Chronic Fatigue

Under the circumstances of this case, the Board concludes that service connection for fatigue is not warranted.

At the outset, the Board notes that there is a current diagnosis of chronic fatigue as determined by the November 2011 VA examiner.  

To the extent that the Veteran contends that fatigue is an illness subject to presumptions provided to veterans who served in the Persian Gulf, chronic fatigue is not an undiagnosed illness or a medically unexplained chronic multi symptom illness.  The November 2011 VA examiner specifically noted that the Veteran's fatigue was multifactorial and had a clear and specific etiology and diagnosis.  Hence, presumptive service connection is not warranted for the undiagnosed illness presumptive provisions under 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.  Accordingly, the analysis progresses to the question of direct service connection for the disability.  See Combee, 34 F.3d at 1042. 

As determined above, the first element of service connection is satisfied as the Veteran has a diagnosis of chronic fatigue.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  See, Boyer; supra, D'Amico; supra, Hibbard; supra.  

The Veteran's service treatment records are negative for complaints or treatments related to fatigue. 

While the Veteran reported a number of symptoms at the time of his separation from his initial period of service in January 1980, no pertinent abnormalities were found on examination at that time.  Furthermore, the Veteran specifically denied any history of fatigue at the time of his entrance examination into the Army National Guard in June 1984.  Moreover, no pertinent abnormalities were noted on examination at that time, or at any time during his active military service in 1991.  The Board finds it significant that the Veteran specifically denied any problems referable to the disabilities now at issue on appeal at the time of his separation examination in April 1991, and again on a periodic examination for National Guard service in July 1992, more than one year after his discharge from active service.  Although he now asserts that all of his disabilities began within a couple of months after returning home from Southwest Asia, his service medical records do not reflect any problems within the first 15 months of his separation from active service. 

Additionally, the first reported complaint associated with any of the disabilities on appeal was more than 2 years after his separation from service in June 1993 when he complained of fatigue.  Although the impression was chronic fatigue of unknown etiology, subsequent evaluations have attributed his fatigue to sleep apnea and the brain hemorrhage.

Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between current fatigue and the Veteran's military service.  In fact, the January 2007 VA examiner opined that it was less likely than not that the Veteran's chronic fatigue was related to the 3 months he spent in the Persian Gulf as the Veteran had no complaints of chronic fatigue with his examination in 1997 which was 6 years after his time in the Gulf War.  Additionally, the November 2011 VA examiner noted that the Veteran's fatigue was multifactorial and had a clear and specific etiology and diagnosis as the Veteran had poor sleep hygiene, a heavy chewing tobacco habit and PTSD with dysthymia and depression which were all significant causes of sleep disturbances and subsequent fatigue.  

Neither the Veteran nor his representative has identified, presented, or alluded to the existence of a medical opinion that establishes a relationship between a chronic fatigue disability and service.

As there is no competent opinion linking the current disability to service, the preponderance of the evidence is, therefore, against the claim for entitlement to service connection for chronic fatigue on a direct basis.

As noted above, the evidence does not show that the Veteran currently has an unexplained illness related to his fatigue.  The medical evidence of record has diagnosed the Veteran with chronic fatigue that is the result of sleep loss related to his PTSD for which service connection has been established.  Chronic sleep impairment is contemplated by the rating criteria for PTSD and this has been considered in assigning a disability rating for the service-connected PTSD.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).  There is no evidence attributing this symptom to any other cause, other than the Veteran's assertion that this is due to some type of undiagnosed illness.  However, the November 2011 VA examiner concluded that the fatigue was the result of sleep deprivation that was related to the service-connected PTSD.  Given the medical expertise of the VA examiner, the opinion is more probative than that of the Veteran.  Ascribing particular symptoms to an undiagnosed illness is beyond the capabilities of a lay person.

In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's chronic fatigue was not shown in active service or for several years thereafter, and his currently diagnosed chronic fatigue has not been shown by competent medical evidence to be etiologically related to his active service as it instead is a result of his sleep impairment which is contemplated by the rating criteria for his service-connected PTSD.  In addition, as the Veteran's disability has been diagnosed as chronic fatigue, and hence, has been attributed to a diagnosed disorder, the Veteran may not avail himself of the presumption pertaining to undiagnosed illness as set forth in 38 C.F.R. § 3.317.  Accordingly, service connection for a chronic fatigue disability is not warranted on any basis. 

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz, supra; Gilbert, supra.

3. Blurred vision with myopia and presbyopia

Under the circumstances of this case, the Board concludes that service connection for myopia and presbyopia is not warranted.

At the outset, the Board notes that there is a current diagnosis of myopia and presbyopia as determined by the November 2011 VA examiner.

To the extent that the Veteran contends that myopia and presbyopia is an illness subject to presumptions provided to veterans who served in the Persian Gulf, myopia and presbyopia is not an undiagnosed illness or a medically unexplained chronic multi symptom illness.  The November 2011 VA examiner specifically noted that the myopia and presbyopia had a clear and specific etiology and diagnosis.  Hence, presumptive service connection is not warranted for the undiagnosed illness presumptive provisions under 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.  Accordingly, the analysis progresses to the question of direct service connection for the disability.  See Combee, 34 F.3d at 1042. 

The Board initially notes that the Veteran although the Veteran complains of periodic blurred vision, the Board notes that the current medical diagnoses the Veteran carries which are related to his eyes have either been found to be age related, or are refractive errors for which service connection cannot be granted as a matter of law.  Specifically noted were the findings from the  December 2006 VA optometry note which indicated that the Veteran had myopia with presbyopia which most likely accounted for his blurred vision and the findings of the October 2011 VA examiner who determined that the Veteran had myopia and presbyopia in each eye correctable to 20/20 in each eye with glasses.  Additionally, the November 2011 VA examiner noted that the Veteran had myopia and presbyopia which began in 2004 that were not related to any military service or any active duty exposures as they were found in normal individuals as they age and have a clear and specific etiology and diagnosis.

Refractive errors of the eyes are generally congenital or developmental defects and not disease or injury within the meaning of applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9.  In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  Id.  Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).  As such, service connection cannot be granted for myopia or presbyopia as a matter of law. 

However, the Board notes that the October 2011 VA examiner also noted that a slight superior defect was found in the superior field of the right eye.  However, even assuming that this defect is considered a disease or injury and not a congenital or developmental defect within the meaning of applicable legislation, service connection is not warranted.

Notably, the Veteran's service treatment records are negative for eye injuries or conditions and there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current eye disability and the Veteran's military service.  Moreover, the October 2011 VA examiner noted that this blurred vision did not start developing until around 2004 which was long after and not related to any military service or any active duty exposures.  The November 2011 VA examiner also noted that these conditions were found in normal individuals as they age and have a clear and specific etiology and diagnosis.

Neither the Veteran nor his representative has identified, presented, or alluded to the existence of a medical opinion that establishes a relationship between an eye disability and service.

As there is no competent opinion linking the current disability to service, the preponderance of the evidence is, therefore, against the claim for entitlement to service connection for an eye disability on a direct basis.

In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's blurred vision with myopia and presbyopia, was not shown in active service or for several years thereafter, and his currently diagnosed blurred vision with myopia and presbyopia, has not been shown by competent medical evidence to be etiologically related to his active service.  In addition, as the Veteran's disability has been diagnosed as myopia and presbyopia, and hence, has been attributed to a diagnosed disorder, the Veteran may not avail himself of the presumption pertaining to undiagnosed illness as set forth in 38 C.F.R. § 3.317.  Accordingly, service connection for myopia and presbyopia disability is not warranted on any basis. 

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz, supra; Gilbert, supra.

4. Dementia

Based on the above evidence, the Board finds that service connection for dementia, to include as due to an undiagnosed illness is not warranted.  

As noted above, service connection has been established for an acquired psychiatric disability to include PTSD.  Memory impairment is one of the potential features or manifestations of PTSD and is contemplated in the rating currently assigned.  However, no competent evidence has been offered to suggest that a separate psychiatric disability is warranted for dementia.  The service treatment records are silent for any complaints, treatment, or abnormalities referable to any psychiatric problems or memory loss during service.  Furthermore, the Veteran specifically denied any problems with memory loss or amnesia at the time of his separation examination in April 1991 and, more importantly, on a periodic examination for National Guard service in July 1992, more than one year after his discharge from active service.  Thus, there is no competent evidence that the Veteran had any signs or symptoms of dementia in service or of a psychosis within one year of discharge from active military service.  Likewise, the Veteran has presented no competent medical evidence relating any dementia to military service.  

Additionally, the Board finds a preponderance of the evidence is against finding a currently diagnosed disability of dementia, and a preponderance of the credible evidence of record is against finding a qualifying chronic disability for which service connection is warranted.

The first reported problem of memory loss was on VA psychological examination in April 1994.  Although a diagnosis of dementia was offered, the examiner specifically stated that the etiology was unknown.  Dementia was also noted on VA psychiatric examination in March 1997.  However, the diagnosis appears to have been made by way of history rather than by any actual clinical or diagnostic findings as the examiner concluded that the principal diagnosis was that of PTSD.  In any event, the examiner did not relate the Veteran's dementia to military service. In fact, none of the psychiatric evaluations of record, either private or VA, have ever related the veteran's dementia to military service.  Curiously, while the Veteran maintains that he suffers from memory loss, a review of the medical records associate with the claims folder reveals the veteran's ability to recall in detail many specific events that occurred over 12 years ago which are the bases for his present claims. 

Significantly, the December 2006 and November 2011 VA examiners determined that the Veteran did not have dementia and that the Veteran did not have a chronic disability pattern.

The December 2006 examiner specifically noted that "clearly, the test results suggest that the patient does not suffer from dementia" and that his episodic memory problems likely would improve if he pursued treatment for his depression.  

The November 2011 VA examiner also noted that the clinical findings did not constitute a diagnosis of dementia and there was no evidence in the medical record that any cognitive disorder dated back to the Veteran's military service.  The examiner also indicated that the few impairments noted on testing were less likely than likely due to any event on active duty and that the examination did not identify a chronic disability pattern as several of the claimed symptoms had a clear and specific etiology and diagnosis and the other symptoms were physiologic and were not pathological or abnormal.  The examiner opined that it was less likely that the conditions with clear and specific etiologies and diagnoses were due to or related to a specific exposure event during the Veteran's service in Southwest Asia.

Neither the Veteran nor his representative has identified, presented, or alluded to the existence of a medical opinion that establishes a diagnosis of dementia or a relationship between a dementia disability and service.

Thus, the Board finds a preponderance of the evidence is against finding a currently diagnosed disability of dementia, and a preponderance of the credible evidence of record is against finding a qualifying chronic disability for which service connection is warranted.

In short, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to service connection for dementia, to include as due to an undiagnosed illness.  In making this decision, the Board has considered the benefit-of-the-doubt-doctrine, but it does not apply, because the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); Ortiz, supra; Gilbert, supra.

C.  All Disabilities

The Board notes the Veteran's contentions regarding the etiology of his claimed bilateral hip; wrist; headaches and a brain hemorrhage; chronic fatigue; blurred vision with myopia and presbyopia and dementia disabilities.  To the extent that the Veteran himself contends that a medical relationship exists between his claimed current disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that bilateral hip; wrist; headaches and a brain hemorrhage; chronic fatigue; blurred vision with myopia and presbyopia and dementia disabilities are not disabilities subject to lay diagnosis as these diagnoses requires medical training.  More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the bilateral hip; wrist; headaches and a brain hemorrhage; chronic fatigue; blurred vision with myopia and presbyopia and dementia disabilities etiologies.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  Additionally, the January 2007, October 2011 and November 2011 VA examiners provided detailed rationales in support of their opinions and cited to the relevant evidence.  For this reason, the VA examiners opinions are the most probative evidence of record.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion).  

Thus, the Veteran and his representative's lay assertions that there is a relationship between his bilateral hip; wrist; headaches and a brain hemorrhage; chronic fatigue; blurred vision with myopia and presbyopia and dementia disabilities and service, to include as due to an undiagnosed illness, are not sufficient in this instance and are outweighed by other probative evidence of record.  Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007).  


ORDER

Entitlement to an initial compensable rating for dyspepsia is denied.

Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied.

Entitlement to a rating in excess of 30 percent for frostbite of the right foot with residual pain and cold intolerance is denied.

Entitlement to service connection for bilateral hip pain is denied.

Entitlement to service connection for wrist pain is denied.

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

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

Entitlement to service connection for blurred vision with myopia and presbyopia, to include as due to an undiagnosed illness is denied.

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


REMAND

The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. 

One of the matters the Board must address is which issue or issues are properly before it at this time.  Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran.  In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203.

As noted above, in a January 2013 rating decision, the RO, in part, continued a 50 percent rating for PTSD and denied entitlement to a TDIU.  In a June 2013 correspondence, the Veteran's representative indicated that the Veteran disagreed with his current evaluation for PTSD and felt that he was unemployable due to a multitude of service-connected disabilities.  

While the Veteran expressed disagreement with the January 2013 rating decision, it appears that no subsequent statement of the case was ever issued.  Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issues of  entitlement to a rating in excess of 50 percent for PTSD and entitlement to a TDIU remain pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26.  In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal.  The Board's actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. 

Regarding the Veteran's claims for service connection, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A (d) (West 2002).  The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).

The threshold for finding a link between current disability and disease or injury in service is low.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions.  However, it is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

Regarding the Veteran's claim for service connection for contusion, left proximal humerus, service treatment notes reflect that the Veteran hurt his left elbow in August 1979.  There was noted tenderness to his left proximal humerus.

A February 2006 VA x-ray report noted that the Veteran had a long history of upper extremity joint pains.  X-rays of the right and left elbow demonstrated tiny bilateral olecranon spurs but an otherwise negative radiograph.

Given that there were in-service complaints of a left elbow pain and there is possibly a current diagnosis of a left elbow disability based on the February 2006 x-rays, this claim must also be remanded so that a comprehensive VA examination can be afforded.  

The Board notes that the Veteran has yet to undergo a VA examination for his claimed contusion, left proximal humerus disability.  An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim.  See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4); See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (where there is competent evidence of a current disability and evidence indicating an association between the disability and active service, there must be competent evidence addressing whether a nexus exists).  

Regarding the Veteran's claim for service connection for a skin disorder, to include as due to an undiagnosed illness, the Board notes that in the May 2006 decision, the Board remanded this issue for additional development to schedule a VA examination to address the etiology of the claimed skin disability.  Per the remand instructions, the Veteran underwent a VA examination in January 2007.  He reported that he had problems with a rash involving his abdomen, arms and legs.  He could not tell exactly when it started but thought it possibly began 2 to 3 years after he returned home from his 3 month tour in the Persian Gulf.  There was quite an intermittent nature to the rash as it came and went after 2 to 3 days.  Examination showed no rashes of the skin currently.  Concerning the Veteran's previous diagnosis of tinea unguium, the examiner noted that tinea unguim was a diagnosis of a fungal infection and was not an undiagnosed illness.  No residuals were noted presently.

The Veteran also underwent a VA examination in November 2011.  The examiner noted that there were no rashes or abnormalities identified beyond multiple sebhorrhic keratosis of the back consistent with his age.  The Veteran also denied having any skin rashes at the time. The diagnosis was no skin disorder or rash identified.

However, on VA examination in August 2012, the examiner noted a diagnosis of dermatitis.  The examiner however did not provide an etiology regarding this diagnosis.  Additionally, a January 2013 VA treatment record noted that the Veteran presently had a rash of unknown cause.

As there is evidence of a possible skin disability existing since the most recent VA examination to provide an etiology in November 2011, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection a skin disorder, to include as due to an undiagnosed illness, and that further medical examination and opinion are warranted.  

Regarding the Veteran's claim for dyspnea with exertion disability, the Board notes that 38 C.F.R. § 3.310(a) permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995).

The Board notes that the Veteran underwent VA examinations in January 2007 and November 2011 which determined that his dyspnea with exertion disability was less likely than not related to the 3 months the Veteran spent in the Persian Gulf.  However, the November 2011 VA examiner also noted that the Veteran's dyspnea was more likely related to his obesity, depression, and deconditioning since these factors commonly affected exercise tolerance and since no disease related to these symptoms was identified on examination.  

The Board notes that the Veteran is service-connected for PTSD.  As noted above, the examiner also diagnosed the Veteran with depression.  As a result of these diagnoses, the Veteran's claim has been expanded to encompass these disabilities.  See, Clemons, supra.  

The Board notes that the November 2011 VA examiner addressed whether the Veteran's dyspnea with exertion disability was a symptom of an undiagnosed illness and whether or not it was directly related to service.  However, the examiner also suggested that the Veteran's dyspnea with exertion disability was possibly the result of his service-connected acquired psychiatric disability to include PTSD on a secondary basis.  See, Allen, supra.

While the examiner noted that the Veteran's risk factors for dyspnea with exertion included obesity, depression, and deconditioning, there is no opinion as to whether the Veteran's service-connected acquired psychiatric disorder to include PTSD and depression aggravated his nonservice-connected dyspnea with exertion disability beyond the natural progression of the disease.

As there is potential evidence of a current dyspnea with exertion disability related to the Veteran's service, to include as secondary to service-connected acquired psychiatric disorder to include PTSD and depression, a new VA examination is needed to resolve the claim of service connection.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

Under these circumstances, the Board finds that specific VA examinations and medical opinions-based on consideration of the Veteran's documented medical history and assertions, and supported by fully stated rationale-are needed to resolve the claims for service connection for a contusion, left proximal humerus disability and service connection for a skin disorder and dyspnea with exertion to include as due to an undiagnosed illness.  See 38 U.S.C.A. § 5103A (d) (2) (West 2002 & Supp. 2012), 38 C.F.R. § 3.159(c) (4) (i) (2012); McLendon, supra.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to a rating in excess of 50 percent for PTSD and entitlement to a TDIU, including citation to all relevant law and regulation pertinent to these claims.  The Veteran must be advised of the time limit for filing a substantive appeal.  38 C.F.R. § 20.302(b).  Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order.

3.  Schedule the Veteran for a VA examination to determine the existence, and if so, etiology of the claimed left elbow disability.  Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether the Veteran has a left proximal humerus disability and if so, whether it is at least as likely as not (50 percent probability or greater) that the disability or disabilities is/are related to service.  All indicated tests and studies are to be performed.  Prior to the examination, the claims folder must be made available to the physician for review of the case.  A complete rationale for any opinion expressed should be provided.

4.  Schedule the Veteran for a skin examination by a VA dermatologist.  The Veteran's claims folder should be forwarded to and be reviewed by the examiner. 

Upon review of the Veteran's medical history and upon examination of his skin, the examiner should identify any skin condition that is currently manifested or otherwise indicated in the record.

For each skin condition identified, the examiner should determine whether condition is a symptom of another disorder (either diagnosed or undiagnosed) or whether it itself is a diagnosed disease entity. 

For each skin disability diagnosed, the examiner should provide an opinion, with supporting rationale, as to whether it is as likely as not that such disability had its onset in, or is otherwise related to the Veteran's military service, to include his exposure to the environmental hazards of Southwest Asia.

If there is no diagnosed skin disability as such, but rather the skin condition is associated with another disability, to include an undiagnosed disability due to Persian Gulf service, this should be made clear. 

Finally, if the Veteran currently has no indication of any skin condition or disability, such should also be made clear.

5.  The Veteran should be provided an examination by an appropriate VA physician to evaluate the etiology of his dyspnea with exertion disability.  Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's dyspnea with exertion disability is related to the Veteran's service, to include as proximately due to or permanently aggravated beyond its natural progression by the service-connected acquired psychiatric disability to include PTSD and depression.  All indicated tests and studies are to be performed.  Prior to the examination, the claims folder must be made available to the physician for review of the case.  

Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles.  A detailed rationale for any opinion expressed should be provided.  

6.  Thereafter, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs