Citation Nr: 1423391 Decision Date: 05/22/14 Archive Date: 05/29/14 DOCKET NO. 10-37 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a bilateral hand disability, to include painful thumbs. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from May 2005 to May 2009. These matters come before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence reflects the Veteran's chronic, intermittent bilateral hand pain is a sign and/or symptoms of an undiagnosed illness. CONCLUSION OF LAW The criteria for service connection for a bilateral hand disability as signs and/or symptoms of an undiagnosed illness have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for a bilateral hand disability as signs and/or symptoms of an undiagnosed illness, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). As discussed above, because the Board is granting the Veteran's service connection claim under the laws and regulations pertinent to undiagnosed illness or other qualifying chronic disabilities, the Board's analysis will focus on this theory of entitlement only and the laws and regulations pertaining to direct and secondary service connection will not be recounted or discussed. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability which cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness that became manifest either during active 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. 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. Id. Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)-(5). Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multisymptom illness 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.A. § 1117(a)(2)(B); 38 C.F.R. § 3.317. 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). With claims based on undiagnosed illness, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). Section 1117(a) of Title 38 of the United States Code authorizes service connection on a presumptive basis only for disability arising in Persian Gulf Veterans due to "undiagnosed illness" and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined. VAOPGCPREC 8-98 (Aug. 3, 1998). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. Id. In this case the Veteran has consistently asserted that he has experienced pain in both hands, particularly the thumbs, since 2007 as a result of his time in service. The pain is chronic, intermittent, and exacerbated by use. The Veteran also asserts that he perceives a loss of strength in his hands bilaterally. An August 2009 VA examination report reflects that the Veteran was diagnosed with Dequervain's tenosynovitis bilaterally. The report also reflects that the Veteran complained of pain and loss of grip strength in both thumbs, particularly in the right hand. There was no loss in range of motion or ankylosis of any of the fingers or thumb. No objective evidence of pain was observed on motion. An X-ray of the right hand dated in August 2009 was negative for findings. A second VA examination was conducted in July 2011. The examination report reflects that the Veteran continued to complain of pain and weakness in his hands bilaterally. No objective evidence of pain was observed on motion and the examiner noted no loss in grip strength (the examiner also noted that the Veteran did not give his best effort during grip testing, failing to close his fist). A July 2010 left hand X-ray was negative for findings, and a July 2011 MRI of the right hand was within normal limits. The examiner concluded that there was no pathology. Based on the July 2011 examiners determination that no pathology existed, and the absence of any medical findings in either the 2009 or 2010 X-rays or 2011 MRI, the Board finds that the probative evidence demonstrates that the Veteran does not have a diagnosis for his bilateral hand pain. Rather, the 2011 MRI report specifically ruled out tenosynovitis as a potential diagnosis. Therefore, the Board does not find the August 2009 examiners diagnosis to be probative. In light of above, the Board concludes that the medical evidence of record reflects that, since his separation from service and for a period of at least six months, the Veteran, who meets the VA's definition of a Persian Gulf Veteran, experienced intermittent and chronic pain in his hands of an unknown etiology which is a symptom rather than a separate, diagnosable disability. Further, conceding that the Veteran is competent and credible to report experiencing pain, the criteria for a 10 percent evaluation for this symptom have been closely approximated prior to December 31, 2016. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5228. As such, service connection for chronic intermittent pain of the hands as signs and/or symptoms of an undiagnosed illness is warranted. 38 C.F.R. § 3.317. ORDER Entitlement to service connection for a bilateral hand disability, to include painful thumbs is granted. REMAND After review of the claims file, the Board finds that the further development is required prior to adjudication of the Veteran's claim for entitlement to service connection for a back disability. The Veteran has asserted that he experiences recurrent low back pain as a result of excessive heavy lifting in service. The Veteran was diagnosed with lumbar strain, spasm recurrent at the August 2009 VA examination. A June 2009 VA treatment report also reflects that the Veteran experienced significant paralumbar spasm. In accordance with the Board's June 2011 remand, the Veteran was provided a second VA examination in July 2011. After a physical evaluation and review of the medical records the examiner opined that the Veteran's back disorder was less likely as not caused or aggravated by military service, to include lifting weights. The examiner went on to state that the Veteran has a mild asymmetry of his lower extremities which is unlikely to be associated with back symptoms and was likely congenital based on the lack of reported trauma to the lower extremities. While the examiner provided an opinion with regard to a nexus between the Veteran's back disorder and his in-service heavy lifting, she did not provide sufficient rationale on which to base a decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the examiner stated her conclusion but did not discuss any reasons for it. Rather, she opined that the Veteran's lower extremity asymmetry was not a cause of his symptoms; she did not provide an explanation for where the Veteran's current back symptoms originated or provide any reasons for her opinion that the low back disability was less likely than not related to service. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is again required in order to obtain an adequate medical opinion as to the etiology of his back disorder. Accordingly, the issue is REMANDED for the following action: 1. Obtain any outstanding VA treatment reports from the Lexington, Kentucky VAMC and any associated outpatient clinics from September 2011 to the present. All attempts to obtain these records must be documented in the claims file. 2. Thereafter, obtain an opinion regarding the etiology of the Veteran's back disorder. The claims file should be provided to the July 2011 VA clinician or to another appropriate VA clinician if she is not available. Should the examiner determine it necessary, a physical examination of the Veteran should be scheduled. Any disorders of the back should be diagnosed. The examiner should review the entire claims file, including a copy of this remand prior to providing the following opinion: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disorder began in service, was caused by service, or is otherwise related to active service. Any symptoms observed during examination or reported by the Veteran should be noted. The examiner is also asked to specifically address the etiology of the August 2009 diagnosis of lumbar strain/spasm. If this condition has resolved the examiner should still render an opinion as to the etiology. A complete rationale must be provided for any opinion offered. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Thereafter, re-adjudicate the Veteran's claim with consideration of all of the evidence of record. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond before returning the case to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs