Citation Nr: 1745519	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  10-06 342	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a disability manifested by multiple joint pain, to include as due to undiagnosed illness.

2.  Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Dupont, Associate Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from August 1976 to August 1979 and from February 2005 to April 2006, and also had additional service in the Reserves.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO).  In December 2013, the case was remanded to schedule the Veteran for a Board hearing.  In May 2014, a Travel Board hearing was held before the undersigned; a transcript is in the record.  In June 2014, the case was remanded for additional development.  The Veteran was previously represented by an attorney; in June 2016, he revoked that power of attorney and designated DAV as his representative (without limitation).   

A March 27, 2017 rating decision denied service connection for chronic fatigue syndrome and an undiagnosed illness, and also declined to reopen claims of service connection for sore joints and for a stomach disability.  [The Board notes that the issue of service connection for a disability manifested by multiple joint pain is currently on appeal, and is addressed below.]  In May 2017, the Veteran filed a Notice of Disagreement (NOD) with the March 27, 2017 rating decision, and requested DRO review.  The RO has not since issued a new rating decision or Statement of the Case (SOC).  Accordingly, these issues appear to be pending processing at the RO, and the Board does not have jurisdiction over them at this time.  [Notably, the Veteran has since changed representation.]

Finally, the Board notes that the Veteran (via his former attorney) raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).  In March 2017 correspondence, the RO advised the Veteran and his attorney that if he wished to pursue a claim for TDIU he must submit a VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability"; the attorney declined to submit the form.  The Veteran to date has not submitted the form (which would contain information needed to properly adjudicate the claim).  The duty to assist a claimant is not a one-way street.  See Olsen v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 406 (1991). 
The issue of service connection for a low back disability is being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on his part is required.  


FINDINGS OF FACT

1.  The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War Era.

2.  The Veteran's multiple joint pain (and specifically in the hands) is not shown to be a manifestation of an "undiagnosed" illness, and is not shown to be etiologically related to his service.  


CONCLUSION OF LAW

Service connection for a disability manifested by multiple joint pain is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  VA's duty to notify was satisfied by correspondence in October 2006 and February 2017.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159.  The Veteran and his representative have not raised any issues regarding VA's duties to notify and assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Legal Criteria

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38. C.F.R. § 3.303(d).

To substantiate a claim of service connection, there must be evidence of:  (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service.  See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

For veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection on a presumptive basis may be established for a qualifying chronic disability chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e)(2).

The term 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(i).  

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, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii). 

There must be "objective indications of a qualifying chronic disability," which 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)(1) and (3).  A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period.  The sixth 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). 

Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  38 C.F.R. § 3.317(b).

With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, 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, 8-9 (2004).  Lay persons are competent to report objective signs of illness such as joint pain or fatigue.  Id at 9-10.  The symptom is presumed to be related to service, and unlike a claim of "direct service connection," VA cannot impose a medical nexus requirement.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117.  Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). 

Compensation shall not be paid for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability 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 and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(a)(7). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Factual Background

The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  

The Veteran's service personnel records show that he served in Southwest Asia during the Persian Gulf War Era.  Active duty service treatment records (STRs) from the Veteran's first period of service are silent regarding complaints of sore joints.  His March 1979 service separation examination found normal upper extremities; he denied broken bones, swollen/painful joints, and any bone, joint, or other deformity.  [Reserve service records show an April 1982 complaint of a dislocated right fifth finger sustained playing basketball, a July 1992 complaint of a jammed left index finger sustained playing basketball, and a May 1998 left foot soft tissue injury sustained playing basketball.]  Reports of periodic Reserve examinations in November 1982, July 1989, August 1991, October 1998, February 2003, and March 2003 note normal upper extremities, and show that the Veteran denied broken bones, swollen/painful joints, and any bone, joint, or other deformity.  STRs from his second period of active duty note a November 2005 complaint of right shoulder pain, but are otherwise silent regarding joint aching/pain complaints.  On February 2006 Post-Deployment Health Assessment, the Veteran denied swollen, stiff, or painful joints, muscle aches, and numbness/tingling in hands or feet.  

On December 2006 VA general medical examination, the Veteran did not report sore/painful joints (other than in the low back); he reported complaints relating to his skin, sinuses, and gastrointestinal system.  He reported that for exercise he ran three times a week, without limitation.  

A June 2007 social work record (including "Iraq & Afghan Post-Deployment Screen") notes the Veteran's report of "muscle/joint pains" that had lasted three months or longer; he did not identify the joints affected.  

A November 2007 Internal Medicine examination report for the Bureau of Disability Determination Services (for Social Security Administration purposes) notes, "There was no heat, redness, swelling, thickening, or deformity of any joints...Grip strength is 5/5 in both hands with normal ability for fine and gross movements."   

In a February 2008 Post-Deployment Health Reassessment, the Veteran reported swollen, stiff, or painful joints. 

A March 2012 clinical record notes that the Veteran denied joint swelling, joint pain, and myalgia.  

On October 2015 VA Gulf War general medical examination, the Veteran complained of joint pain in his hands.  He reported that he had trauma to the distal phalangeal joint of his right third finger from a prior football injury; examination showed residual atrophy of that finger.  The Veteran's hands otherwise showed normal range of motion, muscle strength, and sensation bilaterally; he denied any other joint pains; there were no additional signs and/or symptoms that may represent an undiagnosed illness or a diagnosed medically unexplained chronic multisymptom illness.  The examiner opined that the Veteran's hand pains are less likely than not attributable to environmental exposures during the Gulf War, citing to the Veteran's report of a prior football injury.       

An April 2016 clinical record notes the Veteran's report that he broke his right fifth finger playing high school football.  

Analysis

At the time of his September 2006 claim, the Veteran contended that his "joints are sore and stiff all the time."  See September 2006 statement.  [As he had served in the Southwest Asia Theater of operations during the Gulf War, he was afforded a Gulf War general medical examination in October 2015 (pursuant to the Board's June 2014 remand).]  On that examination, he reported hand pain, but denied other joint pain.  Examination found right hand third finger atrophy that the Veteran attributed to a pre-service football injury; his hands were otherwise normal.  The consulting provider indicated that physical examination was normal except as noted, and indicated that there was no functional impact of additional signs and symptoms that may represent an undiagnosed illness.  The examiner explained that the Veteran's hand pain is more likely mechanical, and less likely than not attributable to environmental exposures during the Gulf War.       

As is noted above, service connection is warranted if probative evidence shows that a Persian Gulf Veteran suffers from (1) a chronic disability resulting from an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period.  Here, the Veteran is not shown to have an undiagnosed illness manifested by hand joint pain (on October 2015 Gulf War examination he described hand pain-primarily in the right third finger which was injured in a pre-service football injury, with residual pathology (atrophy) noted, and denied pain in other joints except for the back), nor is the claimed disability shown to be a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders).  The VA examiner diagnosed a mechanical disability (residual atrophy of the distal phalangeal joint of his right third finger from a prior football injury).  Examination did not find objective signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness; the Veteran's reports of such are strictly subjective and have not been independently verified.  38 C.F.R. § 3.317(a)(1) and (3).  The Veteran's own attribution of his right middle finger disability to a pre-service football injury is affirmative evidence that it was not incurred in service.  38 C.F.R. § 3.317(a)(7).  Accordingly, service connection for the claim hand joint pain disability on a presumptive basis (as an undiagnosed illness/medically unexplained chronic multisymptom illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317) is not warranted.  

There is no competent evidence in the record that otherwise shows or suggests that the Veteran's reported bilateral hand joint pain is etiologically related to his service.  His active duty STRs are silent for hand-related complaints, and he denied swollen, stiff, or painful joints on service separation examinations from both periods of active duty service.  See March 1979 Report of Medical Examination and February 2006 Post-Deployment Health Assessment.  As noted above, postservice treatment records and examination reports show inconsistent reports, and denials, of unspecified joint pain.  As a layperson the Veteran is competent to observe and report symptoms of joint pain, but he lacks the expertise to offer a probative opinion regarding the diagnosis and etiology of a disability underlying the joint pain complaints.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  He has not submitted any medical opinion or medical literature supporting his claim or showing a diagnosis of a hand disability or identifying underlying pathology for hand joint pain complaints).

The preponderance of the evidence is against a finding that the Veteran's reported hand pain is due to disability related to an injury or disease incurred or aggravated in service.  Accordingly, the appeal in this matter must be denied.        


ORDER

Service connection for a disability manifested by multiple joint pain, to include as due to undiagnosed illness, is denied.


REMAND

The Board's review of the record found that further development is needed for VA to fulfill its duties to assist mandated under the VCAA.  The Veteran contends that his current low back disability is related to his service.  Specifically, he contends that he began to experience low back pain after the May 2006 surgical removal of a midline thoracic sebaceous cyst (noted in a March 2006 STR).  See November 2007 Internal Medicine examination report and August 2009 statement.  On October 2015 VA examination, the diagnosis was a lumbosacral strain.  [A December 2009 VA spine examination had found a normal lumbar spine.]  However, two months after the October 2015 examination, the Veteran received a diagnosis of multilevel mild degenerative disc changes of the lumbar spine.  See December 28, 2015 VA clinical record.  As the October 2015 examination report did not encompass consideration of these findings, it is now inadequate for rating purposes.  Consequently, another orthopedic examination to secure an adequate medical opinion regarding the etiology of the Veteran's low back disability is necessary.

The record notes that the Veteran receives occasional low back treatment at VA facilities.  Any outstanding records of such treatment may contain pertinent information, are constructively of record, and must be secured.    

Accordingly, the case is REMANDED for the following:

1. The AOJ should secure for the record updated records of all VA low back evaluations or treatment the Veteran has received since February 2017. 

2. Thereafter, the AOJ should arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his low back disability.  The Veteran's entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination.  Based on review of the record and interview and examination of the Veteran, the examiner must provide opinions that respond to the following:

(a) Please identify (by diagnosis) each low back disability entity found, or shown during the pendency of this claim.

(b) Please identify the likely etiology for each low back disability entity diagnosed.  Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated during the Veteran's active service, to include as a residual of the 2006 removal of a midline thoracic sebaceous cyst?

The examiner must consider and discuss the October 2015 diagnosis of a lumbosacral strain and the December 2015 diagnosis of degenerative disc disease.  

The examiner should include rationale with all opinions, citing to supporting factual data, as deemed appropriate.  

3.  The AOJ should then review the record and readjudicate this claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.

The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs