Citation Nr: 1530429 Decision Date: 07/16/15 Archive Date: 07/24/15 DOCKET NO. 13-27 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a disability manifested by shortness of breath, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness. 3. Entitlement to an initial evaluation in excess of 10 percent for disc bulge of the lumbosacral spine. 4. Entitlement to an initial evaluation in excess of 10 percent for right knee strain. 5. Entitlement to an initial evaluation in excess of 10 percent for right leg compartment syndrome with sciatic nerve involvement. 6. Entitlement to an initial evaluation in excess of 10 percent for left leg compartment syndrome with sciatic nerve involvement. 7. Entitlement to an initial compensable evaluation for right leg compartment syndrome. 8. Entitlement to an initial compensable evaluation for left leg compartment syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The RO, in pertinent part, awarded service connection for the following disabilities effective April 2012: right leg compartment syndrome with sciatic nerve involvement, 10 percent disabling; left leg compartment syndrome with sciatic nerve involvement, 10 percent disabling; disc bulge of the lumbar spine, noncompensable; right knee strain, noncompensable; left leg compartment syndrome, noncompensable; and right leg compartment syndrome, noncompensable. The Veteran is appealing the original assignment of the aforementioned evaluations following the award of service connection. As such, the severity of the disabilities at issue is to be considered during the entire period from the initial assignment of a disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The same decision denied claims of service connection for fatigue, respiratory issues, insomnia, and sleep apnea. These claims have been merged and recharacterized as they appear on the cover page of the instant decision. During the pendency of the appeal, jurisdiction was transferred to the North Little Rock RO. In July 2013, the RO awarded an increased 10 percent disabling rating for the service-connected right knee strain and disc bulge of the lumbosacral spine. The increases were made effective retroactive to the original grant of service connection. The claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that, in a claim for an increased disability rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded). The Veteran presented testimony before the Board in March 2014; the transcript has been associated with the record. The claims pertaining to bilateral compartment leg syndrome, bilateral compartment leg syndrome with sciatic nerve involvement, disc bulge of the lumbar spine, right knee strain, and fatigue are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War; among other medals, ribbons, and citations, the Veteran was awarded the Southwest Asia Service Medal with 2 service stars, Kosovo Campaign Medal with 1 service star, Afghanistan Campaign Medal with 1 service star, Iraq Campaign Medal with 1 service star, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Kuwait Liberation Medal Kingdom of Saudi Arabia, and Kuwait Liberation Medal Government of Kuwait. 2. Affording the Veteran the benefit of the doubt, he has a disability manifested by shortness of breath resulting from undiagnosed illness that is currently manifested to a compensable degree. CONCLUSION OF LAW The Veteran's claimed disability manifested by shortness of breath may be presumed to be related to his period of service in the Persian Gulf. 38 U.S.C.A. §§ 1110 , 1117, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.317 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Given the favorable disposition to grant the claim for service connection for disability manifested by shortness of breath as due to an undiagnosed illness, the Board finds there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. 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). 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). As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. Under 38 C.F.R. § 3.317 , 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. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a) (1) (2014)). For purposes of 38 C.F.R. § 3.317 , there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9 . Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a) (5) (2014); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "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) (2014). "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) (2014). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom 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) (2014). For purposes of section 3.317, 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. 38 C.F.R. § 3.317(a) (4) (2014). The Veteran's service treatment records show he Veteran complained of respiratory symptoms, to include dyspnea on exertion and shortness of breath. Treatment providers noted the Veteran had respiratory symptoms from exposure to burn pits in the Persian Gulf. Notably, a Post-Deployment Health Reassessment shows that the Veteran was deployed to Iraq from January 2006 to April 2006 and was exposed to smoke from burning trash or feces. An October 2011 Methacholine Challenge test did not diagnose reactive airway disease based on test findings. An August 2012 Respiratory examination conducted prior to his discharge, indicated the Veteran had not been diagnosed with a pulmonary condition. He complained of feeling the need to take deep breaths and having to sigh a lot. Chest x-rays and pulmonary function tests in January 2012 were normal. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a disability manifested by shortness of breath as due to an undiagnosed illness is warranted. As a threshold matter, the Board notes again that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C.A. § 1117 ; 38 C.F.R. § 3.317 . The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. Notably, the Veteran's respiratory symptoms, to include shortness of breath, feeling the need to take deep breaths, and having to sigh a lot, have not been attributed to any known clinical diagnosis. In addition, as the Board finds that the Veteran is competent and credible to report the frequency and severity of his respiratory symptoms, and since there is an absence of objective clinical findings (pulmonary function tests) since 2012 where there was some decreased pulmonary function, the criteria for a 10 percent evaluation for these symptoms have been closely approximated given the verified history of respiratory complaints dating back to 2006. Thus, the Veteran's respiratory complaints would warrant the minimum 10 percent rating required under 38 C.F.R. § 3.317 to award presumptive service connection. See also 38 C.F.R. § 4.97. Signs or symptoms involving the respiratory system are an objective sign of an undiagnosed illness. 38 C.F.R. § 3.317(b). They have been objectively identified in the record. Under these circumstances, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability manifested by shortness of breath is severe enough, potentially, to a degree of 10 percent disabling and is due to an undiagnosed illness on a presumptive basis under 38 C.F.R. § 3.31. Thus, service connection is granted. ORDER Entitlement to service connection for shortness of breath as due to an undiagnosed illness is granted. REMAND Further development is necessary prior to a merits analysis of the Veteran's claims pertaining to increased ratings for the service-connected bilateral leg compartment syndrome, bilateral leg compartment syndrome with sciatic nerve involvement, and disc bulge of the lumbosacral spine, and service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness based on the Veteran's Persian Gulf War service. Fatigue. The Veteran's service treatment records contain complaints of fatigue, daytime somnolence, and insomnia. On pre-discharge examination in August 2012, the examiner noted the Veteran had been diagnosed with stertorous sleeping, but a sleep evaluation revealed no obstructive sleep apnea. Post-service treatment records contain continued complaints of fatigue and some indication that fatigue may be related to low testosterone levels. As previously noted, the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War and thus, consideration as to whether his complaints of fatigue are attributed to an undiagnosed illness or a chronic multi system illness like chronic fatigue syndrome is also warranted . See 38 U.S.C.A. § 1117 ; 38 C.F.R. § 3.317. Thus, a new VA examination is necessary to determine the nature and etiology of the claimed condition. 38 U.S.C.A. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79 (2006). Right Knee. The Veteran testified that his right knee disability has worsened in severity since his last VA examination in May 2013. Notably, he indicated that his right knee requires use of a brace and he has difficulty kneeling, bending and standing. The Board cannot ascertain to what extent the knee disability has increased in severity, if at all, without VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Bilateral Leg Compartment Syndrome, Bilateral Leg Compartment Syndrome with Sciatic Nerve Involvement, and Disc Bulge of the Lumbosacral Spine. The Veteran testified that he saw a neurologist within the six months prior to his March 2014 Board hearing regarding his bilateral leg compartment syndrome and had a new magnetic resonance imaging (MRI) that revealed that his back disability involved the sciatic nerve. There are only some private and VA treatment records dated sporadically between the Veteran's discharge in March 2012 and the present (it appears the last records are dated in July 2014 from the Central Arkansas Health Care System). A recent MRI has not been associated with the record. Any missing and/or ongoing VA and private treatment records pertinent to the issues must be obtained upon Remand. 38 C.F.R. § 3.159(c) (1), (2). The Veteran also testified that he suffers from the following: numbness in his feet especially with prolonged walking; feelings of pin and needles in his feet; extreme sensitivity to cold; nerve damage in both legs; chronic back pain; urinary incontinence; and worsening muscle spasms. As noted above, the Veteran indicated that an MRI showed his back disability involved his sciatic nerve. It appears that there may be some overlap in symptoms between the bilateral leg compartment syndrome and disc bulge of the lumbosacral spine. A new VA examination is necessary to determine whether the leg compartment syndrome affects a nerve other than the sciatic nerve, whether the back disability has neurological involvement including the sciatic nerve and bowel and/or bladder impairment, and whether there is muscle involvement with regard to the bilateral leg compartment syndrome. 38 U.S.C.A. § 5103A; McClendon, supra. New evidence has been received since the July 2013 statement of the case (SOC) has been issued, to include, but not limited to, some private treatment records (e.g. November 2013 EMG showing right sensory motor polyneuropathy and possible superimposed right peroneal mononeuropathy) and an April 2015 peripheral nerves examination. The Veteran did not waive initial RO consideration of all the newly submitted evidence and some is pertinent to the claims. A supplemental statement of the case (SSOC) must be issued upon Remand. 38 C.F.R. § 19.31. The RO should ensure that all due process requirements are met, to include giving the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary releases, take all indicated action in order to obtain copies of any missing and/or recent VA and private clinical records not on file pertaining to treatment of the claimed conditions, to include neurological records and MRI reports. All records and/or responses received should be associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for the appropriate VA examinations. All indicated tests or studies must be completed. The examiner should describe all findings in detail. Disability Manifested by Fatigue: All current disabilities should be clearly reported. The examiner should offer an opinion in response to the following: is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed disability manifested by fatigue is related to the Veteran's active military service, to include an undiagnosed illness or chronic multi system illness (e.g. chronic fatigue syndrome) due to the Veteran's Persian Gulf War service? In answering this question, the examiner should make specific reference to the Veteran's service treatment records, which contain complaints of fatigue, daytime somnolence, and insomnia. The examiner should also make specific reference to post -service treatment records showing continued complaints of fatigue and some indication that fatigue may be related to low testosterone levels. Right Knee. Examination findings pertinent to the right knee should be reported to allow for application of VA rating criteria for musculoskeletal disabilities. (a) Range of motion should be reported along with the point (in degrees) that motion is limited by additional function loss due to pain, weakness, fatigue or incoordination. (b) The examiner should perform repetitive range of motion testing and also comment on the degree of limitation of function, if any, due to pain, weakness, lack of endurance, fatigue, or incoordination. (c) The examiner should further comment on whether there is any lateral instability or recurrent subluxation of the knee and if so, whether it is mild, moderate, or severe. Lumbar Spine: Examination findings pertinent to the lumbar spine should be reported to allow for application of VA rating criteria for musculoskeletal disabilities. (a) Range of motion should be reported along with the point (in degrees) that motion is limited by additional function loss due to pain, weakness, fatigue or incoordination. (b) The examiner should perform repetitive range of motion testing and also comment on the degree of limitation of function, if any, due to pain, weakness, lack of endurance, fatigue, or incoordination. (c) The examiner should comment on whether there is any intervertebral disc syndrome and if so, whether there are any incapacitating episodes and the duration of such. (d) The examiner should comment on whether there is any neurological involvement, to include bowel and/or bladder impairment and paralysis or incomplete paralysis of the sciatic nerve and whether such paralysis is mild, moderate, moderately severe, or severe. In discussing involvement of the sciatic nerve, the examiner must indicate which symptoms are attributed to the lumbosacral spine disorder and which are attributed to the bilateral leg compartment syndrome, if possible. Bilateral Leg Compartment Syndrome: (a) Examination findings pertinent to the nerves and muscles of the feet and legs should be reported to allow for application of VA rating criteria for diseases of the peripheral nerves and muscle injuries. (b) The examiner must clarify whether the bilateral leg compartment syndrome affects nerves other than the sciatic nerve and if so, identify which nerve is affected and whether there is complete or incomplete paralysis of the nerve and whether such paralysis is mild, moderate, moderately severe, or severe. (c) The examiner must identify which muscle group is affected by the bilateral leg compartment syndrome and whether such injury is slight, moderate, moderately severe, or severe. (d) The examiner must identify which symptoms of the legs and feet are attributed to the bilateral leg compartment syndrome (muscle injury), bilateral leg compartment syndrome (nerve involvement), and/or lumbosacral spine disability, if possible. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims in light of all evidence of record, to include evidence submitted after the July 2013 SOC was issued. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). These claims 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 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs