Citation Nr: 1336365 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-00 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a disability manifested by memory loss, to include as due to undiagnosed illness. 2. Entitlement to service connection for a disability manifested by joint pain, to include as due to undiagnosed illness. 3. Entitlement to service connection for a disability manifested by skin tabs, to include as due to undiagnosed illness. 4. Entitlement to service connection for a disability manifested by sleep apnea, to include as due to undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to March 1992, including service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In August 2012, the case was remanded for additional development. Previously before the Board in August 2012 was the issue of entitlement to service connection fro a disability manifested by bowel control problems, to include as due to undiagnosed illness. In a February 2013 rating decision, the Veteran was awarded service connection for functional diarrhea (claimed as a disability manifested by bowel control problems). Consequently, that matter is no longer before the Board. As a preliminary matter, the Board observes that the February 2013 supplemental statement of the case (SSOC) states that the Veteran had a personal hearing and that there is a hearing transcript of record dated August 3, 2011. However, the Board clarifies that the Veteran did not have a personal hearing on that date and there is no hearing transcript of record. Rather, the SSOC appears to reference an "Informal Hearing Presentation," which consists of written argument that the Veteran's representative submitted on August 3, 2011 The issue of entitlement to service connection for a disability manifested by sleep apnea, to include as due to undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. There is no competent evidence that the Veteran has a disability manifested by memory loss; nor is there objective indications of a chronic disability associated with memory loss. 3. There is no competent evidence that the Veteran has a disability manifested by joint pain; nor is there objective indications of a chronic disability associated with joint pain. 4. The preponderance of the evidence is against a finding that the Veteran's skin tags are causally related to his active military service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a disability manifested by memory loss, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1117, 1118, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). 2. The requirements for establishing service connection for a disability manifested by joint pains, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1117, 1118, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). 3. The requirements for establishing service connection for skin tags, claimed as a disability manifested by skin tabs, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1117, 1118, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that the duty to notify was met in a November 2007 letter, which was sent to the Veteran prior to the initial unfavorable decision on the claims, and informed him of how to substantiate his claims on a direct basis and as due to an undiagnosed illness. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to the claims for disabilities manifested by memory loss, joint pain, and skin tabs. All available service treatment records as well as all identified private treatment records identified by the Veteran are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran has not identified, nor is the Board aware of, any VA treatment records. Pursuant to the Board's August 2012 remand, VA examinations with respect to the claims for disabilities manifested by memory loss, joint pain, and skin tabs were obtained in October 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in conjunction with the current claims are adequate, as they are predicated on the relevant facts of the Veteran's claims. Specifically, the opinions were based on a thorough examination of the Veteran and gave consideration to all of the pertinent evidence in the record, to include his service and postservice treatment records, and his statements; and provided a complete rationale for the opinions stated. The Board recognizes that no VA opinion has been obtained regarding the Veteran's assertion made in his June 2007 claim that there is a relationship between his current skin tags and in-service exposure to insect repellent, oil well fires, various injections, depleted uranium, "PB" pills, and possible exposure to fallout from Khamisiyah during the Gulf War. In this case, no such opinion is necessary as there is no competent evidence indicating that any of these claimed events resulted in the current skin tags. Consequently, VA is under no duty to obtain a medical opinion on this matter. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Given the above, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the aforementioned issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a December 2012 statement of the case and February 2013 SSOC, which informed them of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. B. Legal Criteria, Factual Background, and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, for a chronic disease listed in 38 C.F.R. § 3.309(a), that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Additionally, various legal provisions apply specifically to compensation claims from Persian Gulf War veterans. Except as provided in 38 C.F.R. § 3.317(c), VA shall pay compensation to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i), (ii). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for disabilities manifested by memory loss, joint pain, or skin tabs. Each claim will be discussed in turn below. Memory Loss Beginning with the Veteran's claim for a disability manifested by memory loss, the Board observes that the elements necessary to establish service connection are not present in this case. The Veteran's service treatment records and postservice treatment are silent for such a diagnosis. In this regard, there is no current diagnosis of memory loss or a disability manifested by memory loss of record. Importantly, the October 2012 mental disorder VA examination report indicated that there was no evidence of any cognitive deficits. In fact, the only evidence of memory loss is from the Veteran himself, which in his claim he reported began in January 2004. The Veteran has not provided details of his claimed memory loss, to include frequency, duration, precipitating factors; and he specifically stated in his claim that he has not sought treatment for memory loss. Although the Veteran is competent to report subjective difficulties with his memory, he is not competent to diagnosis a disability manifested by memory loss as there is no evidence reflecting that he has the necessary expertise to do so. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). Moreover, he is not competent to relate any subjective difficulties with his memory to his service. Accordingly, the Board affords little probative value to any bare assertions of the Veteran that he has a diagnosed disability and that such disability is related to his service. Rather, the Board affords probative value to the conclusions of the October 2012 VA examiner who concluded that the Veteran does not have any evidence of any cognitive deficit/memory loss at present. The Board finds the opinion probative because it was based on a review of the medical records and clinical evaluation of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). Further, the Veteran is not entitled to service connection under 38 C.F.R. § 3.317. Although the Veteran served in Southwest Asia theatre of operations during the Persian Gulf War and does not have a diagnosed disability attributed to any known clinical diagnosis, there are no objective indications of chronic disability. 38 C.F.R. § 3.317(a)(3), (e)(1), (2). Specifically, no medical provider, to include the October 2012 VA examiner, has identified objective evidence of cognitive deficit/memory loss. 38 C.F.R. § 3.317(a)(3). Additionally, there are no non-medical indicators of cognitive deficit/memory loss capable of independent verification. Id. Accordingly, without objective indications of a chronic disability, service connection under 38 C.F.R. § 3.317 cannot be granted. In summary, after analyzing the evidence, it appears that none of the elements of service connection have been met. The elements necessary to establish service connection are not present in this case. See 38 C.F.R. § 3.303. Moreover, service connection cannot be granted under the provisions for undiagnosed illness. See 38 C.F.R. § 3.317. Accordingly, service connection for a disability manifested by memory loss, to include as due to undiagnosed illness, is denied. Joint Pain The Board concludes that service connection for a disability manifested by joint pain due to an undiagnosed illness is not warranted because none of the elements are met. The Board observes first that there are no findings of joint pain in the Veteran's service treatment records. Importantly, the Veteran does not allege that his joint pains began during service. Rather, in his claim, the Veteran asserted that his joint pains began in February 2006, several years after his separation from service. Thus, the second element of service connection is not met. Shedden, 381 F. 3d at 1167. Moreover, there is no current diagnosed disability attributed to his complaints of joint pains. During the October 2012 VA examination, the Veteran denied chronic diffuse muscle, body, and joint pains all over. He did report intermittent joint pains that did not happen at the same time in his right elbow, right first metacarpal joint, right first PCP joint, and both knees over the past 10-15 years. The Veteran denied having ever noticed swelling of the joints. After a physical examination, the examiner determined that there were only subjective symptoms of intermittent arthralgia in the specific joints. No diagnosis was provided and the examiner opined that the criteria for a diagnosis of fibromyalgia were not met. Although the Veteran is competent to report subjective joint pains, he is not competent to diagnosis a disability manifested by joint pains as there is no evidence reflecting that he has the necessary expertise to do so. See Layno, 6 Vet. App. at 469-70; see also Washington, 19 Vet. App. at 368. Moreover, he is not competent to relate any subjective difficulties with his joints to his service. Accordingly, the Board affords little probative value to any bare assertions of the Veteran that he has a diagnosed disability and that such disability is related to his service. There is no other evidence of record suggesting that the Veteran's complaints of joint pain are related to his service. Therefore, the first and third elements of service connection are not met. Shedden, 381 F. 3d at 1167. Rather, the Board affords high probative value to the conclusions of the October 2012 VA examiner who concluded that the Veteran does not have any objective evidence of any disability manifested by joint pains. Specifically, upon clinical evaluation, no tender points for pain were identified. The examiner's assessment was subjective symptoms of intermittent arthralgia of specific joints, not meeting the criteria for a diagnosis of fibromyalgia. The Board finds the opinion probative because it was based on a review of the entire claims file, to include the Veteran's service and postservice treatment records, and clinical evaluation of the Veteran. See Prejean, 13 Vet. App. at 448-49. The examiner also provided a rationale for his opinion explaining that that the Veteran's current joint condition did not meet the criteria for any specific joint condition or diagnosis. Further, the Veteran is not entitled to service connection under 38 C.F.R. § 3.317 because, no medical provider, to include the October 2012 VA examiner, has identified objective evidence of a chronic disability associated with joint pain. 38 C.F.R. § 3.317(a)(3). Additionally, there are no non-medical indicators of joint pains capable of independent verification. Id. Accordingly, without objective indications of a chronic disability, service connection under 38 C.F.R. § 3.317 cannot be granted. In summary, after analyzing the evidence, it appears that the elements of service connection have not been met. There is no competent evidence of an in-service event, injury, or disease; no current diagnosis; and no evidence of a relationship between the two. See 38 C.F.R. § 3.303. Moreover, service connection cannot be granted under the provisions for undiagnosed illness. See 38 C.F.R. § 3.317. Accordingly, service connection for a disability manifested by joint pains, to include as due to undiagnosed illness, is denied. Skin Tags/Tabs The Board concludes that service connection for skin tags, claimed as a disability manifested by skin tabs, is not warranted because there is no competent and credible evidence of a relationship between the current diagnosis of skin tags and the Veteran's military service. Initially, the Board observes that the October 2012 VA examination report contains a diagnosis of skin tags. As skin tags are attributed to a known clinical diagnosis, the provisions of 38 C.F.R. § 3.317 are not for application. The Veteran has inconsistently reported when his skin tabs were first present. In his initial claim, the Veteran reported that his skin tabs began in June 1992, three months after this separation from service. He reported that he did not receive any treatment for them. The Veteran specifically stated that he "did not have skin tabs before or during [his] time in the military and it also does not run in [his] family." However, in his July 2009 notice of disagreement (NOD), the Veteran reported that after returning from Operation Desert Storm, he developed skin tabs while serving in Germany. The Veteran asserted that when he was completing his separation examination, he was told not to worry about skin tabs because they are genetic and that this was apparently not recorded in his medical records. When evaluating the evidence of record, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Caluza v. Brown,7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board concludes that the Veteran's reports that he developed skin tabs (herein after skin tags) while in service are not credible. In this regard, there are no in-service findings of skin tags. His January 1992 separation examination found his skin clinically normal and there were no reports of skin tags on his separation report of medical history. Importantly, the Veteran underwent an April 1992 VA examination shortly after his separation from military service. Of note, his skin was found to be within normal limits and the examiner concluded that it was a normal internal medicine examination. The Board finds that the evidence associated with the claims file dated closer in time to the Veteran's service has more probative value than his inconsistent NOD statement provided approximately 17 years after his separation. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). Accordingly, the Board finds that the Veteran did not develop skin tags while in service, and element two is not met. Shedden, 381 F. 3d at 1167. Moreover, there is no competent evidence that any in-service exposure to insect repellent, oil well fires, various injections, depleted uranium, "PB" pills, and possible exposure to fallout from Khamisiyah during the Gulf War caused his skin tags. Although the Veteran asserted such in his claim, there is no evidence that the Veteran has the expertise to make this conclusion. See Layno, 6 Vet. App. at 469-70; see also Washington, 19 Vet. App. at 368. In addition, no medical practitioner has suggested any such relationship. On October 2012 VA examination, the examiner specifically opined that the Veteran's skin tags condition was not related to his service and explained that the Veteran's service treatment records, to include his separation examination report, were silent for any skin condition. Also, there were no immediate post-military medical records (civilian or military) that documented a skin condition. As noted, there are no competent evidence to the contrary and, as the VA examiner's opinion was based on a complete review of the Veteran's claims file and a clinical evaluation of the Veteran, and is supported by adequate rationale, is has high probative value. In conclusion, without competent evidence of an in-service incurrence or aggravation of a disease or injury and/or evidence of a causal connection between an in-service event and a current diagnosis, service connection for skin tags cannot be granted. Accordingly, the claim is denied. ORDER Entitlement to service connection for a disability manifested by memory loss, to include as due to undiagnosed illness, is denied. Entitlement to service connection for a disability manifested by joint pain, to include as due to undiagnosed illness, is denied. Entitlement to service connection for skin tags, claimed as a disability manifested by skin tabs, to include as due to undiagnosed illness, is denied. REMAND In his June 2007 claim, the Veteran stated that his sleep apnea began in June 1992, approximately three months after his separation from service. He related his sleep apnea to in-service exposure to insect repellent, oil well fires, various injections, depleted uranium, "PB" pills, and possible exposure to fallout from Khamisiyah during the Gulf War. In his July 2009 notice of disagreement (NOD), the Veteran clarified that his sleep apnea did begin during his period of service because people in the barracks complained that they could hear him snoring. The post-service evidence contains an August 2005 assessment of sleep apnea and, following an April 2007 sleep study, a May 2007 impression of severe obstructive sleep apnea with desaturation. See August 2005 record authored by Dr. R. Kay; May 2007 letter authored by Dr. J.H. Morrison. The Veteran had a VA examination that addressed this claim in October 2012. Following examination, the examiner opined that the Veteran's current sleep apnea was less likely than not incurred in or caused by the Veteran's active duty service, including as due to undiagnosed illness associated with service in the Persian Gulf. The rationale for the opinion was that the Veteran's service treatment records, including his separation examination, did not document sleep apnea; and there are no immediate post-military medical records that document sleep apnea. The examiner continued that "the sleep apnea condition has clear etiology of the upper airways, therefore not due to undiagnosed illness of Gulf War." The Board concludes that this opinion is inadequate upon which to base a determination, because, as pointed out by the Veteran's representative in the May 2013 informal hearing presentation, there is no indication that the examiner considered the Veteran's statement in his NOD that others in the barracks told him that he snored loudly during service, which is evidence that the Veteran is competent to report and should be considered. It is also unclear what the examiner meant by the statement "the sleep apnea condition has clear etiology of the upper airways, therefore not due to undiagnosed illness of Gulf War." Moreover, although sleep apnea is a diagnosed disability not subject to the provisions of 38 C.F.R. § 3.317, an examiner should nevertheless address the relationship, if any, between the Veteran's reports of in-service exposure to insect repellent, oil well fires, various injections, depleted uranium, "PB" pills, and possible exposure to fallout from Khamisiyah during the Gulf War, which he is also competent to report. See also December 2000 letter to Veteran from the Office of the Secretary of Defense. Accordingly, a remand is necessary to address these contentions. Barr, 21 Vet. App. at 312. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of his current disability manifested by sleep apnea. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion as to whether it at least as likely as not (a 50 percent or better probability) that sleep apnea is related to the Veteran's active duty service (from January 1988 to March 1992). Specifically, the examiner should address the relationship, if any, between the Veteran's reports that he snored loudly during service and that he was exposed to insect repellent, oil well fires, various injections, depleted uranium, "PB" (Pyridostigmine Bromide) pills, and possible exposure to fallout from Khamisiyah during the Gulf War (as explained in the December 2000 letter to the Veteran from the Office of the Secretary of Defense); and his current diagnosis of sleep apnea. The examiner should presume for purposes of this examination that the Veteran's reports are credible. The examiner should also explain the October 2012 VA examiner's statement that "the sleep apnea condition has clear etiology of the upper airways, therefore not due to undiagnosed illness of Gulf War." The examiner must fully explain the rationale for all opinions, with references to supporting clinical data/lay statements, as deemed appropriate (and noting any inconsistencies between the factual data and allegations made). 2. The AMC/RO should then re-adjudicate the claim. If the claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. ISHIZAWAR Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs