Citation Nr: 1418565 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 00-06 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for weight loss, leg cramps, dizziness and joint pains, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1958 to January 1960 and from January 1991 to June 1991, including in the Southwest Asia theater of operations from February 1991 to May 1991, the latter period while in the Puerto Rico National Guard. This claim come before the Board of Veterans' Appeals (Board) on appeal of an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In December 2007 the Board remanded the claim of service connection for weight loss, leg cramps, dizziness and joint pains, including as due to an undiagnosed illness. The claim was again remanded in April 2010, February 2011, March 2013 and most recently in October 2013. An Independent Medical Examiner also provided an opinion in June 2013. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's weight loss, leg cramps, dizziness, and joint pain are not shown to be due to a disease or injury in-service or to any incident of his military service, to include service in the Gulf War. CONCLUSION OF LAW Weight loss, leg cramps, dizziness, and joint pain were not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 1137 (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 Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran 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 veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information and he has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a chronic disease first diagnosed after service was incurred in service. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans who have served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317 (2013). Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1) (2013). '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) (2013). Disabilities that have existed for at least six months 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) (2013). For purposes of 38 C.F.R. § 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness and (2) a medically unexplained chronic multi symptom illness such a chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) Fatigue, (2) Unexplained rashes or other dermatological signs or symptoms, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurological signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the upper or lower respiratory system, (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). The law and regulations pertinent to the Veteran's claims changed during the course of this appeal. Effective March 2002, VA revised the term 'chronic disability', then in effect, to 'qualifying chronic disability,' and expanded the definition of 'qualifying chronic disability' to include: (a) an 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. 68 Fed. Reg. 34,539 (June 10, 2003). Effective October 2010, VA made technical revisions to 38 C.F.R. § 3.317 to remove a potential source of confusion and to implement more effectively Congress's intent as expressed in 38 U.S.C.A. § 1117. 75 Fed. Reg. 194 (Oct. 7, 2010). Specifically, VA amended § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and do not reflect an exclusive list of such illnesses. Additionally, VA removed § 3.317(a)(2)(i)(B)(4), which reserved to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii). VA did so to provide adjudicators the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). As well, VA added diabetes and multiple sclerosis to § 3.317(a)(2)(ii) as examples of chronic multisymptom illnesses of partially understood etiology and pathophysiology that are not considered medically unexplained chronic multisymptom illnesses. 75 Fed. Reg. 59,970 (Sept. 29, 2010); 75 Fed. Reg. 61,356 (Oct. 5, 2010); 75 Fed. Reg. 61,997 (Oct. 7, 2010). These amendments are applicable to claims pending before VA on October 7, 2010, such as the Veteran's, and provide definitional clarification in this case. As the Veteran had service in the Southwest Asia theater of operations from February 1991 to May 1991, the previously noted presumptive provisions are therefore applicable to his claim. At his December 1959 medical examination the Veteran reported a prior fracture of his right fibula. There was no diagnosis of fatigue, weight loss, leg cramps, dizziness, or joint pain. See also January 1958. The Veteran filed a claim in January 1960 for residuals of a right leg fracture. An April 1960 VA examiner noted bone deformity, irregularity, tenderness, or atrophy, with an old spindle fracture. The Veteran did not reference weight loss, leg cramps, dizziness, or joint pain on this claim. This evidence weighs against his contentions that the claimed conditions began in service and continued on thereafter. On his July 1989 Report of Medical of History the Veteran specifically denied swollen or painful joints, dizziness, leg cramps, or weight loss. In February 1991 the Veteran reported feeling weak and losing weight. See also March 1991 post-deployment assessment. On his April 1991 Report of Medical History the Veteran specifically denied swollen or painful joints, dizziness, leg cramps, or weight loss and these conditions were not diagnosed on examination. However, also in April 1991 the Veteran reported chest pain and fatigue which was diagnosed as a viral syndrome. In a May 1991 record he reported dizziness and joint pain. See also June 1991 record noting fatigue and joint pain. On his August 1994 Report of Medical History the Veteran reported swollen or painful joints, dizziness, and leg cramps. He denied weight loss. No diagnosis was given for the claimed conditions. The Veteran was afforded two VA examinations in March 1997. He did not report fatigue, weight loss, leg cramps, dizziness, or joint pain at either examination. In August 2000 he reported shoulder pain. In a March 2002 record he denied weight loss. See also March 2004 VA treatment record. The Veteran also denied dizziness at a March 2004 VA examination and had a body mass index (BMI) of 20.4. His BMI was 20.1 in a September 2005 record and he reported dizziness when lying down. He was diagnosed with vertigo. In a December 2005 treatment record the Veteran denied weight loss, fatigue, or dizziness. His BMI was 20.1. See also May 2005 record noting BMI of 20.3. A June 2009 VA examination report noted the Veteran did not meet the criteria for chronic fatigue syndrome. A June 2011 addendum opinion noted that the Veteran's diagnosis of weakness was not related to, or considered, chronic fatigue syndrome, but was a symptom of his service-connected chronic obstructive pulmonary disease (COPD). It was also a diagnosed illness and not considered Gulf War Syndrome or otherwise related to service. At his heart VA examination in June 2009 the Veteran reported weekly dizziness, but no weight change. In March 2010 the Veteran denied dizziness, fatigue, weight loss, or joint pain. See also August 2009 treatment record. In December 2010 the Veteran again denied dizziness, fatigue, weight loss, or joint pain. His BMI was 19.2. An April 2013 VA examination report noted symptoms of fibromyalgia, joint stiffness, and anxiety. Although these symptoms were noted, ultimately the examiner determined the Veteran did not meet the criteria for fibromyalgia. The examiner opined that the Veteran's shoulder and knee pain could be related to degenerative changes due to aging. The examiner also related weight loss to the Veteran's service-connected COPD. The examiner related the Veteran's leg cramps to his lower back condition with radiculopathy. In June 2013 an Independent Medical Examiner reviewed the claims file and provided an opinion. The physician opined that it was less likely than not that the Veteran's weight loss, leg cramps, dizziness and joint pain were proximately due to, or the nexus of, an undiagnosed illness. The examiner noted the Veteran was in good health 2 weeks into his second tour of duty. The examiner related the Veteran's health complaints, including chest tightening, weight loss, and dizziness to anxiety. She noted the Veteran had anxiety symptoms and continued smoking throughout his tours of duty and it would be mere speculation to assume deployment and occupation/environmental exposure aggravated or caused his medical problems. In November 2013 a VA examination report and addendum opinion were obtained. The examiner noted the Veteran's complaints of weight loss, leg cramps, dizziness and joint pain. She opined his joint pain complaints, to include leg pain, were at least as likely as not related to degenerative changes due to aging. She noted that his lower back condition with leg radiculopathy began around 2010. She did not relate the in service leg fracture and painful joints to his current complaints as these were acute and transient conditions in service. There was also no evidence of treatment for these as chronic conditions. She also related his weight loss to COPD. In a follow up opinion the examiner noted March 2004 and July 2007 BMIs of 20.4 and 20.9, respectively. The examiner noted that the Veteran's April 1991 dizziness was due to a viral syndrome. There was no further evidence of this condition. She again noted that the Veteran did not have evidence of a chronic disability resulting from an undiagnosed illness or evidence which could substantiate a diagnosis of fibromyalgia. A preponderance of the competent probative evidence weighs against the Veteran's assertions that his claimed conditions are related to service. The evidence of record includes the Veteran's statements asserting continuity of symptoms since active duty service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, an absence of evidence of a disorder may not be considered substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The exception is 'where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom' or if the fact would have normally been recorded. see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Buczynski, supra. The Veteran is competent to report that he has continued to experience weight loss, leg cramps, dizziness, and joint pain symptoms since service. As noted above, the Board cannot make a determination that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, supra; Kahana, supra; Buczynski, supra. However, the Board can weigh the Veteran's service treatment records against the contentions that his claimed disorders are related to service. The Veteran was not diagnosed with the claimed conditions in service and when he reported symptoms of dizziness and chest pain it was attributed to a viral condition. Further, no medical examiner has linked the claimed conditions to service. To the contrary, the April 2013 VA examiner determined the Veteran did not meet the criteria for fibromyalgia. She related the Veteran's joint pain to degenerative changes due to aging and his weight loss to the Veteran's service-connected COPD. The Independent Medical Examiner in June 2013 related the Veteran's symptoms to anxiety and smoking. Finally the November 2013 examiner related the Veteran's joint pain to degenerative changes due to aging and his leg cramps to radiculopathy associated with lumbar spine pain. She also noted the in service complaints of leg pain and dizziness were acute and transient conditions, not chronic. She also related his weight loss to COPD. She again noted that the Veteran did not have evidence of a chronic disability result from an undiagnosed illness or evidence which could substantiate a diagnosis of fibromyalgia. The Board notes the Veteran's representative's argument in February 2014 that the November 2013 examiner's selection of two dates to report the Veteran's BMI was arbitrary. However, the representative does not reference any BMI readings that should be considered. Moreover, the Veteran's BMI was not dispositive of the examiner's opinion. The opinion regarding weight loss was primarily based on the fact that the Veteran's weight loss was attributed to his COPD. The medical evidence weighs against the Veteran's contentions that his claimed conditions are related to service. Here, the Board finds that the reported lay history of weight loss, leg cramps, dizziness, and joint pain in service and continued symptomatology post service, while competent, is nonetheless not credible. See e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Emphasis is placed on the evidence of record during service, to include health complaints in service and his separation examination, and the VA examination reports which did not link the Veteran's disorders to service or an undiagnosed illness. In sum, the Veteran has not been diagnosed as having a current disorder related to military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, there are no objective indications of a qualifying chronic disability. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The Veteran has not submitted a medical opinion refuting that of the VA examiners and, as previously indicated, his assertions relating weight loss, leg cramps, dizziness, and joint pain to service are insufficient to establish the necessary nexus in this case. The Veteran's symptoms have been either diagnosed conditions, such as vertigo, attributed to aging, or determined to be a symptom of his COPD, a known diagnosis, and are contemplated in the rating assigned that service-connected disability. As such, after weighing and balancing the evidence, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's claimed weight loss, leg cramps, dizziness, and joint pain are related to service to include his service in the Persian Gulf War. Accordingly, the Board finds that the criteria for service connection are not met and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for weight loss, leg cramps, dizziness, and joint pains is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs