Citation Nr: 1341906 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 06-34 227A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for depression, to include as due to undiagnosed illness. 2. Entitlement to service connection for a joint disorder, to include as due to undiagnosed illness. 3. Entitlement to service connection for a headache disability, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and His Spouse ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to April 1981 and from November 1990 to June 1991. The Veteran also had a period of Reserve service. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Columbia, South Carolina, VA Regional Office (RO). In March 2008, the Veteran testified at a hearing before the Board. A transcript of this hearing has been associated with the virtual record. This case was previously before the Board in April 2008, when it was remanded for further development. In March 2009, the Board denied the Veteran's claims, which he appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Memorandum Decision, the Court reversed the Board's denial of the Veteran's applications to reopen claims of entitlement to service connection for a stomach disorder, a headache disorder, a joint disorder, a muscle disorder, and blood in the colon, all due to undiagnosed illness, and remanded the claims to be considered on their merits. The Court further vacated the Board's denials of the claims for leg cramps and memory disorder, both due to undiagnosed illness, and the Board's denial of the claim for depression and remanded for action consistent with the Memorandum Decision. Subsequently, in March 2012, the Board remanded the claims for additional development. In March 2013, the Board denied the claims for stomach and muscle disorders, as well as the claims for blood in the colon and leg cramps. As such, they are no longer in appellate status. The Board additionally remanded the claims listed on the cover page for further development and adjudication. Having been completed, the claims have been returned to the Board and are now ready for appellate disposition. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Depression is not shown to be a separate disability from the service-connected posttraumatic stress disorder (PTSD. 2. The Veteran has been diagnosed with degenerative joint disease of the shoulders, knees, and ankles, as well as calcaneal spurs, known diagnoses; competent and probative medical evidence of record preponderates against a finding that the Veteran's joint disorder is due to events in active service; degenerative joint disease is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service 3. The Veteran has been diagnosed with tension headaches, a known diagnosis; competent and probative medical evidence of record preponderates against a finding that the Veteran's headaches are due to events in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for depression, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2013). 2. The criteria for service connection for a joint disorder, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2013). 3. The criteria for service connection for a headache disability, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran adjudication notice by letters dated in June 2004 and February 2006. VA also has a duty to assist the Veteran in the development of the claims. VA has obtained some service treatment, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which has been obtained. In April 2008, the Board remanded the Veteran's claims for attempts to be made to obtain treatment records of the Veteran from the VA Medical Center (VAMC) in Charleston and the William Jennings Bryan Dorn VAMC in Columbia, to include the Florence Community Based Outpatient Clinic (CBOC) dated in 1993 and/or 1994. A response from the William Jennings Bryan Dorn VAMC in Columbia dated in May 2008 indicates that there were no records regarding the Veteran for the period identified. A formal finding of unavailability of the Veteran's service treatment records was associated with the claims file in July 2008. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303(a). Certain disorders, such as arthritis, are presumed to have been incurred in service if manifested or aggravated within one year of separation from service to a degree of 10 percent or more, provided that the veteran has served a minimum of ninety days either during a period of war or during peacetime service after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, VA shall pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran with a qualifying chronic disability that 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. The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (1) 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; (2) any diagnosed illness that the Secretary determines warrants a presumption of service connection; (3) an undiagnosed illness in a 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 below, provided that such disability by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. "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. For purposes of this section, 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. For the purposes of this section, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) Fatigue, (2) signs or symptoms involving the 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, or (13) menstrual disorders. Compensation shall not be paid under this section 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 if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the 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 if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs or symptoms are medically attributed to a diagnosed (rather than an undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. See VAOPGCPREC 8-98 (Aug. 3, 1998), 63 Fed. Reg. 56703 (1998); see also Neumann v. West, 14 Vet. App. 12, 22-23 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The record shows that the Veteran is a Veteran of the Persian Gulf War, having served in the Southwest Asia Theatre of Operations from January 1991 to May 1991, and, therefore, the initial threshold criterion is met for service connection for the entity claimed under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Depression The Veteran alleges entitlement to service connection for depression, but the available service treatment records do not identify the presence of such a disability. Post-service, the Veteran was diagnosed with depression during the August 2004 Gulf War examination and by VA treatment providers in February 2007. However, the April 2012 VA examiner found no other mental disorder present. The Veteran has been diagnosed with PTSD for which service connection is currently in effect. The Board remanded the matter in 2013 to determine whether depression was a manifestation of the PTSD or a separate disability. The May 2013 VA examiner found that there was no evidence that the Veteran's depressive symptoms that were present, were separate from the service-connected PTSD. The examiner noted the Veteran's physical conditions contributed to both his PTSD and depressive disorder, but PTSD was the more appropriate diagnosis. The evidence of record fails to document a separate disability manifested by depression that is attributable to the Veteran's service. See Boyer, supra. In the absence of proof of such disability there is no valid claim for service connection. As a preponderance of the evidence is against entitlement to service connection for depression, to include as due to an undiagnosed illness, denial of the benefit sought is required and the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); see generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Joint Disorder The Veteran alleges entitlement to service connection for a joint disorder. He has been diagnosed with degenerative joint disease of the shoulders, ankles, and knees, as well as calcaneal spurs, and thus, presumptive service connection based on such service is precluded. That aside, service treatment records show the Veteran reported swollen and painful joints on his April 1991 report of medical history. The mere fact that he reported such complaints is not enough to establish that a chronic joint disability manifested in service. A joint disability was not shown on the corresponding medical examination as the examiner found no defects affecting duty. Thereafter, the Veteran denied swollen and painful joints on examination in July 1992. The physical examination was similarly negative. Post-service, the Veteran complained of joint pain in July 1999. The Veteran was diagnosed with ankle and knee degenerative joint disease in 2007. Shoulder degenerative joint disease was diagnosed in 2011. These findings are clearly outside the one-year presumptive period for arthritis. 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's joint disorder (arthritis of the shoulders, ankles, and knees, as well as calcaneal spurs) and his active service. In that regard, the April 2012 VA examiner opined that the claimed conditions were not incurred in or caused by an in-service injury or disease. The examiner also indicated that the conditions were not related to any potential exposure event in the Gulf. As outlined above, the competent medical evidence of record concludes that a joint disorder, including arthritis of the shoulders, ankles, and knees, as well as calcaneal spurs, is not related to the Veteran's active duty service. A chronic joint disease was not present to a degree capable of identifying the disease entity during service. No symptoms related to a joint disorder have been identified in the post-service medical record for continuity of symptomatology. The Board concludes that service connection for a joint disorder is not warranted under 38 C.F.R. § 3.303(b). Moreover, degenerative joint disease of the shoulders, knees, and ankles was not diagnosed to a compensable degree within the year following the Veteran's discharge from active service. 38 C.F.R. § 3.307, 3.309. The only evidence of record to support the Veteran's contentions is his statements, which do not establish a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. In short, service connection is not warranted on a direct or presumptive basis (to include as due to an undiagnosed illness) for the claimed joint disorder. The Board finds that the evidence is not in relative equipoise; thus, the Veteran may not be afforded the benefit of the doubt and his claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Headache Disability The Veteran alleges entitlement to service connection for a headache disability. He has been diagnosed with tension headaches, and thus, presumptive service connection based on such service is precluded. That aside, service treatment records show the Veteran sustained a three centimeter laceration on the left side of his head when he sat up in bed in February 1981. There was no loss of consciousness and there were no neurological symptoms. In February 1991, the Veteran complained of head pains. He indicated he did not know if he had headaches on the April 1991 report of medical history. The mere fact that the Veteran sustained a laceration to the head and complained of head pains, is not enough to establish that a chronic headache disability manifested in service. A headache disability was not shown on the corresponding medical examination. Thereafter, the Veteran denied headaches on examination in July 1992. The physical examination was similarly negative. Post-service, the Veteran complained of headaches upon VA examinations in August 2004 and April 2012. He testified before the Board and described his headaches as starting at the back of his head and lasting one day. He did not indicate when the headaches began. VA outpatient treatment records dated between 2008 and 2012 do not show treatment for a headache disability. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's headache disability and his active service. In that regard, the May 2013 VA examiner opined that the headaches started after the Veteran's discharge from military service and no link was shown to relate the headaches to such service. The Board additionally notes that the mental health examiner found no evidence of a traumatic brain injury on examination in May 2013. As outlined above, the competent medical evidence of record concludes that a headache disability is not related to the Veteran's active duty service. A chronic headache disability was not present to a degree capable of identifying the disease entity during service. No symptoms related to a headache disability have been identified in the post-service medical record for continuity of symptomatology. The Board concludes that service connection for a headache disability is not warranted under 38 C.F.R. § 3.303(b). The only evidence of record to support the Veteran's contentions is his statements, which do not establish a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. In short, service connection is not warranted on a direct or presumptive basis (to include as due to an undiagnosed illness) for the claimed headache disability. The Board finds that the evidence is not in relative equipoise; thus, the Veteran may not be afforded the benefit of the doubt and his claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a headache disability, to include as due to undiagnosed illness is denied. Entitlement to service connection for a joint disorder, to include as due to undiagnosed illness is denied. Entitlement to service connection for depression, to include as due to undiagnosed illness is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs