Citation Nr: 1337635 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-05 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness. 2. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness. 3. Entitlement to service connection for abnormal weight loss, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness. 4. Entitlement to service connection for a neurological disorder, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to March 1994, to include service in Southwest Asia during the Persian Gulf War. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The claims were remanded for additional development in May 2010 and March 2013. They have now been returned to the Board for further appellate consideration. An additional claim that was developed for appellate review was the issue of entitlement to service connection for muscle pain, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness. While these matters were in remand status, in a July 2013 rating decision, the RO granted service connection for chronic lumbar strain with muscle spasms and for associated radiculopathy of the left lower extremity. The Board finds that the grant of service connection for these disabilities constitutes a full award of the benefits sought on appeal with respect to the issue of entitlement to service connection for muscle pain. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the appellant has initiated an appeal with the initial ratings or effective dates assigned. Thus, those matters are not in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issues of entitlement to service connection for joint pain, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness, and for a neurological disorder, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom 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. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The appellant served in Southwest Asia during the Persian Gulf War. 2. The most probative evidence indicates that the appellant does not have an undiagnosed illness manifested by a sleep disorder arising from his active service in the Southwest Asia theater of operations during the Gulf War. His reports of sleep disturbance are due to his service-connected psychiatric disability. 3. The most probative evidence indicates that the appellant does not have a disorder manifested by abnormal weight loss arising from his active service in the Southwest Asia theater of operations during the Gulf War. This condition is not currently demonstrated. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2012). 2. The criteria for service connection for abnormal weight loss have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant has had a meaningful opportunity to participate effectively in the processing of the claims decided herein with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2005, May 2010, and March 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki, supra, (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield, supra. Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the December 2011 supplemental statement of the case (SSOC). Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims decided herein. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Subsequent to the Board's March 2013 remand decision, the Veteran was afforded VA examination later that month regarding the claims on appeal. An addendum, dated in August 2013, as to the claim for a sleep disorder was also obtained. In toto, the examinations and addendum were thorough in nature and adequate for the purposes of deciding these claims. The report and addendum reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered appropriate diagnoses and opinions consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); and Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Thus, the Board finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 U.S.C.A. § 1117(a)(1) (West 2002 & Supp. 2012), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a 'qualifying chronic disability' that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more during the presumptive period prescribed by the Secretary. Effective December 18, 2006, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2011 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 71 Fed. Reg. 75669 (2006). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.317(d) (2012). In this case, the Veteran is documented to have had such service. The definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. 3.117(a)(2)(c) (2012). 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) (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 multi symptom 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). Background The STRs are negative for report of, treatment for, or diagnosis of a sleep disorder. Moreover, there is no report of weight loss. The Veteran's weight was listed as 127 pounds in September 1989. Post STRs show a diagnosis of posttraumatic stress disorder (PTSD) which has been service connected. Major components of this psychiatric diagnosis include sleep disturbance and loss of appetite. The post service records are replete with references to the Veteran's sleep difficulties and his poor appetite. It is noted that his weight was recorded as 131 pounds in August 2004 and 133 pounds in October 2004. A private report reflects that he weighed 144 pounds in February 2009. As requested by the Board in a March 2013 remand, VA examinations were requested to address the etiologies of the claimed disorders. At that time, the Board found that a previously conducted June 2010 evaluation addressing the claims was inadequate for consideration, primarily because the examiner did not address all medical questions and/or provided conflicting opinions. When examined in March 2013 regarding PTSD, it was noted that the Veteran weighed 140 pounds and while evaluated for eating disorders, none were found. The Veteran said that his weight had fluctuated since 2005. He weighed 140 pounds at the time of this evaluation. Virtual records show that this weight was maintained in April 2013. In an August 2013 addendum, the examiner opined that the Veteran's sleep disorder was not a separate diagnosis from service-connected PTSD. Moreover, the examiner added that sleep disorder symptoms were incorporated in the evaluation of his PTSD. Analysis Sleep Disorder The Veteran claims that he has a sleep disorder as an undiagnosed illness. After carefully reviewing the record and considering the appellant's contentions, it is concluded that the preponderance of the evidence is against the claim. As a preliminary matter, the Board does not question the appellant's recollections that he has suffered from sleep disturbance for many years after returning from the Gulf War. In order to establish service connection for an undiagnosed illness manifested by a sleep disorder resulting from service in the Southwest Asia theater of operations, however, the law requires that the symptoms in question not be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii) (2012). In this case, as described in detail above, the most probative evidence in this case consistently shows that the appellant's sleep difficulty is a symptom of his service-connected PTSD. Under these circumstances, service connection pursuant to section 3.317 is not warranted. Because the appellant's sleep problems have been attributed to a known clinical diagnosis, the Board has also considered whether service connection may be established for the diagnosed disorder. As noted, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, service connection may be established on a secondary basis if the evidence shows a connection between the claimed disability and a service-connected disability, either causally or by way of aggravation. See 38 C.F.R. § 3.310(a) (2012); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). With respect to the sleep problems produced by the appellant's service-connected PTSD, the Board notes that he has already been compensated for such symptomatology. Indeed, the RO specifically considered the appellant's sleep impairment in assigning the 70 percent disability rating currently in effect. See 38 C.F.R. § 4.14 (2012) (prohibiting pyramiding). In summary, the Board concludes that the most probative evidence establishes that the appellant does not have an undiagnosed illness manifested by a sleep disorder secondary to his service in the Southwest Asia theater of operations during the Gulf War. Rather, his reported sleep problems are part and parcel of his service-connected PTSD. Abnormal Weight Loss The Veteran attributes abnormal weight loss to an undiagnosed illness. Review of the record reflects, however, that no such weight loss is demonstrated in the record. In fact, he has gained weight since his days in the service. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2012); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of a disorder manifested by abnormal weight loss, the claim is denied. Final Considerations For the reasons stated above, the Board finds that the preponderance of the evidence is against the claims of service connection for a sleep disorder and abnormal weight loss, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness, and the claims must be denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, No. 01-7006 (Fed. Cir. December 17, 2001). ORDER Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness, is denied. Entitlement to service connection for abnormal weight loss, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness, is denied. REMAND The appellant also seeks service connection for joint pain, to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness, and for a neurological disorder, also to include as due to an undiagnosed illness or as a manifestation of a chronic multisymptom illness. Review of the STRs reflects that the Veteran was seen for left leg swelling, muscle tightness, and numbness in the lower extremity following a football injury in 1991. There are several subsequently dated references to this left leg pain and numbness, although no specific joint or neurological disorder was diagnosed. Post service treatment records show that the Veteran has complained of generalized back and joint pain and other arthralgias. (And, as already noted, service connection was recently established for lumbar spine strain, spasms, and associated radiculopathy into the left lower extremity.) Specifically, for example, when seen by VA in March 2005, he complained of joint pain and stiffness in his hands and shoulders. The assessment was arthralgia, which the examiner "likely" attributed to his job as a mail carrier. VA records dated in March and April 2006 show complaints of pain in the finger joints and in the back. VA records in January 2007and November 2008 also reflect continued reports of joint pain. A private record in February 2009 shows that the Veteran presented with complaints of ongoing back pain, as well as radiating pain into the right lower extremity, and severe muscle spasms. VA records dated in November 2009 and 2010 show diagnoses of lumbar spine and left lower extremity conditions which are now service connected. Upon VA examination in May 2013, the Veteran reported periodic pain in both hands since 2004. He also described left shoulder pain which began in 2005. The impression was of minimal glenohumeral and acromioclavicular joint degenerative joint disease (DJD). While the examiner noted that examination of and X-rays of the hands were normal, it was opined that the Veteran's "hand pain condition" appeared to be an undiagnosed illness. Numbness and tingling in the hands were also noted. It is the Board's conclusion that additional neurological examination of the hands is necessary before a decision is made regarding the neurological claim on appeal. Similarly, as many of the Veteran's joint complaints center on the hands, it found that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's claims. 2. Then, the RO/AMC should arrange for the Veteran to undergo a neurological examination to determine the nature and etiology of any disorder of the hands, to include whether the Veteran has an undiagnosed illness or medically unexplained chronic multisymptom illness of which the Veteran's hand pain, numbness, or tingling are manifestations. The claims file must be made available to and reviewed by the examiner. All tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should render an opinion consistent without sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any currently diagnosed neurological disability of the hands is related to the Veteran's active service or was caused or permanently worsened by service-connected disability. The examiner should also render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has an undiagnosed illness or medically unexplained chronic multisymptom illness of which the claims of hand pain, numbness, or tingling are manifestations. The rationale for all opinions expressed should be provided. 3. The RO/AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or AMC should readjudicate the Veteran's remaining claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified, but he 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs