Citation Nr: 1337337 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 06-29 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a neurological disorder, to include myasthenia gravis and/or dysautonomia, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for bilateral Eustachian tube dysfunction, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant served on active duty from February 2003 to December 2004. Service in Southwest Asia is indicated in the evidence of record. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee (the RO) which denied the appellant's claims for entitlement to service connection for myasthenia gravis, GERD with constipation, and bilateral Eustachian tube dysfunction. For the reasons discussed in the Remand below, the Board has characterized the issue of entitlement to service connection for myasthenia gravis as entitlement to service connection for a neurological disorder. In an October 2012 rating decision, the RO granted service connection for gastroesophageal reflux disease with constipation (claimed as acid reflux) with an evaluation of 10 percent effective December 8, 2004. The Board notes that in the September 2013 Informal Hearing Presentation, the appellant's representative requested that the issue of entitlement to service connection for constipation be remanded by the Board as a May 2012 VA examiner opined that the appellant's constipation was caused by dysautonomia, not GERD. However, as the RO granted service connection for gastroesophageal reflux disease with constipation, service connection has been granted for constipation and the Board does not have jurisdiction over the issue. In regard to the issue of entitlement to service connection for bilateral Eustachian tube dysfunction, the Board finds that the RO substantially complied with the mandates of the February 2012 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In May 2009, the appellant submitted a statement outlining multiple disabilities and symptomatology, to include difficulty swallowing/dysphagia, sleep apnea, fainting, vomiting, weight loss, low and high blood pressure, pain and numbness in multiple locations (i.e., forearm, limbs, stomach, back, ear, jaw, hands, feet). In the January 2010 and February 2012 remands, these issues were referred to the agency of original jurisdiction (AOJ) for appropriate action. To date, the AOJ has not adjudicated these issues, thus, the Board again refers these issues for appropriate action pursuant to 38 C.F.R. § 3.317 (2013). The issue of entitlement to service connection for a neurological disorder, to include myasthenia gravis and/or dysautonomia, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317 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. FINDING OF FACT The appellant has not been diagnosed with a bilateral ear disorder, to include Eustachian tube dysfunction, during the period on appeal, and does not have an undiagnosed illness incurred during her service in Iraq. CONCLUSION OF LAW The appellant does not have a bilateral ear disorder, to include Eustachian tube dysfunction or an undiagnosed illness, that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 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 claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims for entitlement to service connection for bilateral eustachian tube dysfunction. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The 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 Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a VCAA notice letter was issued in April 2005. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. A letter addressing the assignment of a disability rating and/or effective date, in the event of award of the benefit sought was issued in March 2006. Dingess/Hartman, 19 Vet. App. at 490. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The AOJ took reasonable steps to obtain personnel records and service treatment records from the Indiana National Guard as requested in the February 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the appellant has asserted that she served in Jordan in 1990, but the National Guard records do not indicate foreign service other than the 2003 deployment in Iraq. The appellant's DD Form 214 from her period of active service from February 2003 to December 2004 noted 2 months and 3 days of prior active service. A Report of Separation from the Air Force National Guard dated November 1985 reflects that the appellant had 2 months and 1 day of prior active duty. The new records obtained from the National Guard did not indicate the appellant had additional periods of active service. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a December 2012 medical examination to obtain an opinion as to the etiology of any Eustachian tube dysfunction found. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria and Analysis The appellant asserts that she is entitled to service connection for a bilateral ear condition, to include bilateral Eustachian tube dysfunction. As the appellant served in Iraq during the Gulf War, the Board has considered whether she is entitled to service connection for an ear condition due to a qualifying chronic disability under 38 C.F.R. § 3.317 (2013). For the reasons that follow, the Board finds that service connection is not warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Certain chronic disabilities, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The appellant has not been diagnosed with an ear disability during the period on appeal. A May 2010 VA examination report reflects that the appellant had episodic, severe, left facial and retroauricular pain which is severe and prostrating at times. She reported that it is constant when it occurs and happens for about 10 months out of the years. Certain things worsen the pain such as vacuum cleaners and certain kinds of music. The VA examiner did not diagnose a condition related to the pain. An August 2010 VA treatment record reflects that the appellant reported having left ear pain that started about 10 years ago and has become more frequent in the past 3 years. She reported that the pain is constant, sharp or steady. The physician noted that a CT scan of the brain showed a small meningioma which was likely not associated with the symptoms of ear pain. An August 2011 VA treatment record notes that the appellant's left ear/neck had swelling that comes and goes. It was not appreciated that day. The appellant reported it was painful. No diagnosis was provided. The appellant was afforded a VA examination in December 2012. The appellant reported a history of constant left ear pain. The examination report reflects that left otalgia began while deployed in the 1990s. There was non-specific pain not associated with TMJ. The VA examiner found that the appellant had "very non-specific ear pain unrelated to any ear or TMJ pathology." The VA examiner noted that the appellant had a normal audiogram. No peripheral vestibular disorder or active ear disease was diagnosed. The VA examiner found the condition was not at least as likely as not related to service as there was no evidence of Eustachian tube dysfunction. The appellant is competent to report symptoms capable of lay observation, such as left ear pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In her December 2004 claim, the appellant stated that she had bilateral ear pain which began in 2003. The Board notes that the appellant has given inconsistent statements regarding the onset of her left ear pain. At the December 2012 VA examination, she reported that it began in the 1990s. A November 2004 private treatment record reflects that the appellant did not have an ear ache. An August 2010 VA treatment record noted that the appellant reported her left ear pain began about 10 years ago. As the evidence indicates the appellant has made conflicting statements regarding the onset of her ear pain, the Board finds the statements regarding the onset of her left ear pain to be less than credible. The evidence does not demonstrate that the appellant has been diagnosed with a left ear disability during the period on appeal. 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. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). To prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). In this case, other than the appellant's assertions, the record contains no evidence of a diagnosis of a chronic disability manifested by ear pain, at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim). As the appellant has not been diagnosed with a left ear or bilateral Eustachian tube dysfunction disorder during the period on appeal, the Board finds that service connection is not warranted. As the appellant is a Persian Gulf Veteran, the Board has considered whether the appellant has a qualifying chronic disability that may be service-connected. Under 38 C.F.R. § 3.317, a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; or (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses). 38 C.F.R. § 3.317(a)(2). The term "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. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. Id. "Objective indications of chronic disability" include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id. Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under 38 C.F.R. § 3.317: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between a veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of a veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). The appellant's DD Form 214 reflects that she served in Iraq from May 10, 2003, to June 30, 2003. Thus, she served in the Persian Gulf during the requisite time period under 38 C.F.R. § 3.317. A March 2003 service treatment record from Blanchfield Army Community Hospital, dated prior to her deployment to Iraq, reflects that the appellant complained of bilateral ear pain. She stated that she felt light headed and had a slight headache behind her eyes for 2 days. The tympanic membranes were clear without fluid or redness. The assessment was Eustachian Tube Dysfunction. Sudafed was prescribed to be taken as needed. In a July 2003 post-deployment health assessment, the appellant denied having headaches during the deployment. She also denied having frequent or severe headaches. Although the appellant noted having ear, nose or throat trouble, she specified that she had increased difficulty swallowing and increased loss of voice. No ear problems or ear pain were mentioned in the post-deployment medical assessment. A July 2004 Medical Board examination report indicates that the appellant's ears were normal. In a July 2004 report of medical history, the appellant reported having a chronic cough and eye trouble, but did not report any problems relating to her ears. The report of medical history does not note any ear pain. The Board finds that the criteria for 38 C.F.R. § 3.317 do not apply as the appellant's alleged ear pain began prior to her deployment in the Gulf and she did not report any pain during or following her deployment. Although the appellant has not been diagnosed with a left ear or Eustachian tube dysfunction disorder, her service treatment records reflect that the condition pre-dated her service in the Iraq and thus could not have been incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War. Although the appellant has given conflicting reports of the onset of her ear pain, in her December 2004 claim, she stated that the bilateral ear pain which began in 2003. Thus, the Board finds that service connection is not warranted for a qualifying chronic disability under 38 C.F.R. § 3.317. In conclusion, the appellant has asserted that she has bilateral chronic ear pain that is related to service, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. The Board finds that the appellant has not been diagnosed with a chronic ear disability, to include Eustachian Tube Dysfunction, during the period on appeal. Although a lay person may be competent to report symptoms of a disability, the appellant is not competent to report that she has a bilateral left ear disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pain alone is not a disability for VA purposes. The Board finds the December 2012 VA examination report wherein the examiner found the appellant had "non-specific ear pain unrelated to any ear or TMJ pathology" to be probative. The opinion was based on a review of the claims file, examination and interview of the appellant. As discussed above, as the appellant reported having left ear pain with an assessment of Eustachian Tube Dysfunction prior to her deployment to Iraq, the Board finds that service connection is not warranted under 38 C.F.R. § 3.317. In the absence of a diagnosis of a chronic disability during the period on appeal, service connection is not warranted. As the preponderance of the evidence is against the claim for service connection for bilateral Eustachian tube dysfunction, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral Eustachian tube dysfunction, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317 is denied. REMAND The appellant has applied for service connection for myasthenia gravis. In the February 2012 remand, the Board remanded the claim for additional development, including a new examination. The VA examiner was instructed to provide an opinion as to whether the appellant has myasthenia gravis currently or at any period following her separation from service in December 2004. The appellant was diagnosed with myasthenia gravis in service. In a May 2012 VA examination, the VA examiner found that "[a]ccording to the treatment records, she has been thoroughly evaluated and does not have nor has she ever had myasthenia gravis." The VA examiner found that the appellant had a diagnosis of dysautonomia. The VA examiner did not provide an opinion as to whether the appellant's dysautonomia is related to or aggravated by her active service. The examiner opined that the appellant's dysautonomia caused her to have gastrointestinal symptoms, dysphagia, and constipation. Even though the appellant specified that she sought service connection for myasthenia gravis, her claim constituted a claim for service connection for neurological disorder however diagnosed. The May 2012 VA examination report indicates that the appellant's nervous system symptoms, which were previously diagnosed as myasthenia gravis, are now diagnosed as dysautonomia. As such, the claim cannot be limited only to the diagnosis that the appellant references, but rather, must be considered a claim for service connection for any and all neurological disorders clinically indicated. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, as discussed by the appellant's representative in the September 2013 Informal Hearing Presentation, the examiner was requested to opine whether it is at least as likely as not that any disability manifested by constipation had its clinical onset during the appellant's period of active service. Although the VA examiner opined that the appellant's constipation was related to dysautonomia, she did not provide an opinion as to whether the dysautonomia was related to service. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the VA examiner did not provide an opinion as to the etiology of the appellant's dysautonomia, the Board finds that the examination is inadequate. Thus, the claim must be remanded for a new opinion. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to VA clinician of appropriate expertise to provide opinion as to the following: (i) Is it at least as likely as not (at least a 50 percent probability) that the appellant's dysautonomia is causally related to the appellant's period of active duty service from February 2003 to December 2004, or any prior period of active service or active duty for training? (ii) Did dysautonomia pre-exist service (February 2003 to December 2004) and if so, did it undergo an increase in disability during active service beyond any natural progress? The VA clinician should discuss whether the appellant's symptoms which were previously diagnosed as myasthenia gravis are now diagnosed as dysautonomia. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the VA clinician determines that a VA examination is necessary to provide an opinion, such should be accomplished. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a neurological disorder, to include myasthenia gravis and/or dysautonomia. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The AOJ should also ensure that appropriate action is taken with regard to the appellant's claims of service connection for difficulty swallowing/dysphagia, sleep apnea, fainting, vomiting, weight loss, low and high blood pressure, pain and numbness in multiple locations (i.e. forearm, limbs stomach, back, ear, jaw, hands, feet) pursuant to 38 C.F.R. § 3.317. 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). 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs