Citation Nr: 1336173 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-27 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a chronic disability manifested by fatigue including as due to an undiagnosed illness. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a chronic disability manifested by weight loss including as due to an undiagnosed illness. 3. Entitlement to service connection for a chronic disability manifested by fatigue including as due to an undiagnosed illness. 4. Entitlement to service connection for a chronic disability manifested by weight loss including as due to an undiagnosed illness. 5. Entitlement to service connection for a chronic disability manifested by dizziness including as due to an undiagnosed illness. 6. Entitlement to service connection for a chronic disability manifested by nausea including as due to an undiagnosed illness. 7. Entitlement to service connection for a chronic disability manifested by dehydration including as due to an undiagnosed illness. 8. Entitlement to service connection for a chronic disability manifested by night sweats including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to November 1964 and from November 1990 to May 1991. The Veteran also had more than 30 years of service with a Reserve/National Guard Component. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2005 and January 2010 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2010, the Veteran withdrew his request for a hearing before a Veterans' Law Judge traveling to the RO. In November 2011 and April 2013, the Board remanded the above issues for additional development. In a post-remand rating decision dated in July 2013, VA granted the Veteran's claims of service connection for headaches and an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). Therefore, the Board finds that these claims are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). The claims of service connection for chronic disabilities manifested by nausea, dehydration, and/or night sweats including as due to an undiagnosed illness 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. A February 2001 rating decision denied the Veteran's claims of service connection for chronic disabilities manifested by fatigue and weight loss including as due to an undiagnosed illness. 2. The most probative evidence of record shows that the evidence received since the time of the final February 2001 rating decision is new, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the Veteran's claims. 3. The most probative evidence of record shows that the Veteran's fatigue and weight loss have been attributed to the clinically diagnosed disability of hypovitaminosis D. 4. Hypovitaminosis D was not shown in service, or for years thereafter, and the most probative evidence fails to link it to service. 5. The most probative evidence of record shows that the Veteran has a chronic disability manifested by dizziness. CONCLUSIONS OF LAW 1. The February 2001 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012); 38 C.F.R. § 3.104 (2013). 2. Evidence submitted to reopen the claim of entitlement to service connection for a chronic disability manifested by fatigue including as due to an undiagnosed illness is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Evidence submitted to reopen the claim of entitlement to service connection for a chronic disability manifested by weight loss including as due to an undiagnosed illness is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 4. A chronic disability manifested by dizziness as due to an undiagnosed illness was incurred in service. 38 U.S.C.A. §§ 101, 106, 1101, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.317 (2013). 5. A chronic disability manifested by fatigue including as due to an undiagnosed illness was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 106, 1101, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.317 (2013). 6. A chronic disability manifested by weight loss including as due to an undiagnosed illness was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 106, 1101, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under 38 U.S.C.A. § 5102 VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim. The appellant must also be notified of what specific evidence to provide and what evidence VA will attempt to obtain. VA likewise has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). As to the claims to reopen, given the fully favorable decision with respect to that specific question the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. As to the service connection claim for dizziness, given the fully favorable decision the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary since any deficiency in the timing or content of such notice would constitute harmless error. As to the service connection claims for fatigue and weight loss, the Board finds that the pre-adjudication letters the RO sent the Veteran in December 2008, March 2009, September 2009, and October 2009 as well as the post-adjudication letters the RO/AMC sent the claimant in November 2011, January 2012, and May 2013 provided him with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a). While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claims, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the July 2013 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence, including the Veteran's service treatment records, reserve component treatment records, service personnel records, and his post-service records. The Veteran was provided with VA examinations in November 2009, November 2011, and June 2013, regarding his fatigue and weight loss claims. These examinations, when taken together, are adequate to adjudicate the claims and substantially comply with the Board's remand directives, because after taking a detailed medical history from the claimant and after a review of the record on appeal as well as after conducting an examination the examiners provided opinions as to the diagnoses and origins of the Veteran's disabilities. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found his electronic VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims to Reopen The RO initially denied service connection for a chronic disability manifested by fatigue and weight loss including as due to an undiagnosed illness in a February 2001 rating decision. The Veteran did not appeal the February 2001 rating decision. Moreover, the record does not show that the Veteran, following the rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b) (2013). Therefore, the Board finds that the rating decision is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In this regard, in order to establish service connection for the claimed disability, there must be probative evidence (1) of a current disability; (2) of in-service incurrence or aggravation of a disease or injury; and (3) of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303; Hickson v. West, 12 Vet. App. 247, 253 (1999). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that the February 2001 rating decision denied the claims because the record did not show that the Veteran had any chronic disability manifested by fatigue and/or weight loss. However, since the February 2001 rating decision, the June 2013 VA examiner diagnosed the Veteran with hypovitaminosis D and opined that this disease caused both his fatigue and weight loss. As this addresses a basis for the prior denial, the Board finds the VA examination is new and material evidence as defined by regulation. Accordingly, the claims are reopened. The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. However, these presumptive periods do not apply to ACDUTRA or INACDUTRA service. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). As to undiagnosed illness claims, 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, or that became manifest to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); See also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom 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). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). Presumptive service connection is warranted for certain infectious diseases, but that is not implicated here. "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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In this regard, the Board finds that that Veteran's DD 214 shows that he has the required service for the criteria found at 38 C.F.R. § 3.317 to apply to his claims for service connection. a. Fatigue and Weight Loss As to the claims of service connection for chronic disabilities manifested by fatigue and weight loss, these complaints have now been attributed to hypovitaminosis D by the June 2013 VA examiner. As this is a known clinical entity, it takes the matter out of the criteria expressed in 38 C.F.R. § 3.317 for establishing service connection for disability due to an undiagnosed illness. Further, hypovitaminosis D is not shown to have been considered at issue in any records associated with service. Notably, the evidence shows the Veteran weighed 165 pounds in 1972, 179 pounds in 1989, and 178 pounds in April 1991, on a 65 inch frame. The post-service record is negative for a diagnosis of hypovitaminosis D, the cause of the Veteran's fatigue and weight loss, until years after his second period of active duty ended in 1991. Furthermore, no medical record or otherwise competent source relates the Veteran's hypovitaminosis D to either of his periods of active service, a disease or injury arising from an occasion of ACDUTRA, or an injury on INACDUTRA. Indeed when examined in connection with this claim for VA purposes in June 2013, the examiner opined the Veteran's disorder was not related to service. This medical opinion is not contradicted by any other medical evidence of record. Additionally, neither the Veteran nor any of the individuals who provided statements in support of his claims are shown to possess any medical expertise as would render them competent to offer a probative opinion on disease or disability etiology. See Davidson, supra. Moreover, given the June 2013 examiner's medical expertise, the Board accords this opinion greater probative value than the Veteran's and the other lay contentions, since they are not shown to have any such training or experience. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Accordingly, the Board finds that a basis upon which to establish service connection for chronic disabilities manifested by fatigue and weight loss, diagnosed as hypovitaminosis D, has not been presented. Accordingly, the claims of service connection are denied. b. Dizziness As to the claim of service connection for a chronic disability manifested by dizziness including due to an undiagnosed illness, the medical evidence shows these complaints have been recognized by those treating the Veteran, and they have not been definitively attributed to any particular cause. Given that fact, and the provisions for service connection set out under 38 C.F.R. § 3.317 concerning such unexplained illnesses, a basis upon which to award that benefit has been presented. Accordingly, service connection for a disability manifested by dizziness is granted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.317. ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a chronic disability manifested by fatigue including as due to an undiagnosed illness is reopened, and to that extent only, the appeal is granted. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a chronic disability manifested by weight loss including as due to an undiagnosed illness is reopened, and to that extent only, the appeal is granted. Service connection for a chronic disability manifested by fatigue including as due to an undiagnosed illness is denied. Service connection for a chronic disability manifested by weight loss including as due to an undiagnosed illness is denied. Service connection for a chronic disability manifested by dizziness is granted. REMAND As to the claims of service connection for chronic disabilities manifested by nausea, dehydration, and night sweats, the Board finds that a remand for a VA examination is indicated since those particular claims went un-addressed following the Board's prior remand. The record also indicates that the Veteran receives ongoing treatment from the VA. Updated records should be obtained. Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should obtain and associate with the record, copies of the Veteran's VA treatment dated since April 2012. 2. After undertaking the above development to the extent possible, the RO/AMC should make arrangements with an appropriate VA medical facility for the Veteran to be examined to address whether the claimed symptoms may be considered to be related to service. The claims file should be provided to the examiner for review in connection with the examination. All indicated tests and studies deemed appropriate by the examiner should be accomplished, and all clinical findings should be reported in detail. The examiner should address whether the claimed symptoms of nausea, dehydration and night sweats, represent an undiagnosed illness or medically unexplained chronic multi-symptom illness; or whether they are symptoms of known clinical entities. If these symptoms are no longer present, that fact also should be indicated, although the examiner should nevertheless express an opinion as to the cause for these complaints when they were present, (in terms of whether a known clinical entity was responsible for them or otherwise). The basis for any opinion offered should be expressed. If it is not possible to offer an opinion without resort to speculation, the reason for this should be explained as well. 3. The RO/AMC should readjudicate the claims. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs