Citation Nr: 1752517	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  13-25 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied service connection claim for Gulf War Syndrome (GWS) with manifestation of undiagnosed muscle aches, memory loss, cough, and fatigue, and if so, whether service connection for Veteran's Gulf War Syndrome is warranted.

2. Whether new and material evidence has been received to reopen a previously denied service connection claim for residuals of a burn injury to the eyes, and if so, whether service connection for an eye disability is warranted.

3. Entitlement to a greater than 20 percent evaluation for lumbosacral strain with degenerative disc disease (DDD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1973 to July 1975, from July 1975 to May 1977, and from September 1990 to May 1991. The Veteran had service in the Southwest Asia Theater during Operation Desert Shield/Storm.

These matters comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied reopening the Veteran's service connection claims for residuals from a burn to the eyes and Gulf War Syndrome (with manifestation of undiagnosed muscle aches, memory loss, cough, and fatigue), and denied a disability rating in excess of 20 percent for lumbosacral strain with degenerative disc disease. 

The Veteran's service connection claim for an eye disability was initially denied in April 1993 and his service connection claim for Gulf War Syndrome (GWS) was initially denied in October 2005. The Veteran did not appeal these decisions and they became final one year after the rating decision date. The Veteran attempted to reopen the claims by submitting new evidence, but was denied in October 2005 and August 2010 rating decisions.  

The Board notes that the Veteran has submitted letters indicating his intent to withdraw several of his claims. After the Board submitted an inquiry on the status of the Veteran's intent to withdraw his claims, the Veteran's representative endorsed that the Veteran's comments were not specific enough to be accepted as a withdrawal of claim; and therefore, requested that all three issues be preserved and sent to the Board for adjudication. See November 2017 Correspondence.

FINDINGS OF FACT

1. The April 1993 rating decision which denied service connection for a burn injury to the eyes is final; evidence received since that rating decision is new, but not material, and does not otherwise raise a reasonable possibility of substantiating the claim.

2. The October 2005 rating decision which denied service connection for Gulf War Syndrome is final; evidence received since that rating decision is new, but not material, and does not otherwise raise a reasonable possibility of substantiating the claim.

3. The preponderance of the evidence shows that the Veteran's lumbar spine strain with DDD manifested with forward flexion limited to 70 degrees with combined range of motion of 170 degrees, with pain, fatigue, weakness and lack of endurance on flare-up, with no presence of ankylosis or prescribed bedrest for incapacitating episodes.


CONCLUSIONS OF LAW

1. The April 1993 rating decision denying service connection for a burn injury to the eyes is final, and the criteria for reopening that claim have not been met. 38 U.S.C. §§ 5108, 7105(c)  (2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017).

2. The October 2005 rating decision denying service connection for GWS is final, and the criteria for reopening that claim have not been met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017).

3. The criteria for a rating in excess 20 percent, for lumbar spine strain with DDD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, DC 5243 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. New and Material Evidence

A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2017).

The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). Only evidence presented since the last final denial on any basis will be considered in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120   (noting the assistance of 38 C.F.R. § 3.159 (c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element).

Gulf War Syndrome

The Veteran contends that he experiences memory loss, muscle aches, coughs, and fatigue and attributes these symptoms to suffering from a Gulf War undiagnosed illness. See February 2005 VA 21-4138. The Veteran's representative argues that the Veteran has submitted new and material evidence that raises a reasonable possibility of substantiating his claim.

The Veteran's service connection claim for Gulf War Syndrome (GWS) was initially denied in October 2005 because the RO found that no chronic undiagnosed multi-symptom illness was found on examination or by history. The Veteran's symptoms of memory loss were attributed to his depression and his cough was attributed to bronchitis.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. 1153, § 3.306 (2017).

Because the Veteran served in the Southwest Asia theater of operations VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (a) (2017). 

There are two categories of "qualifying chronic disability." In either case, a Veteran must display symptoms stemming from either (or both) of the following: (1) an undiagnosed illness; or (2) a medically unexplained chronic multisymptom illness, defined by a cluster of signs or symptoms. Id.  A "medically unexplained chronic multisymptom illness" is 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. Id. 

 In all cases where an undiagnosed illness may be present, that illness must be confirmed by objective findings. 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. 38 C.F.R. § 3.317 (a)(3) (2017). Signs or symptoms that may be manifestations of an undiagnosed or medically unexplained chronic multisymptom illness include, but are not limited to, fatigue, headaches, muscle and joint pain, and neurological signs or symptoms. 38 C.F.R. § 3.317 (b) (2017). There is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. Id.  

The Veteran has submitted treatment records from the Fresno VAMC for the period of April 1997 to January 2017. Many of these records are duplicative and were reviewed in the prior rating decisions. These documents indicate continued treatment for symptoms of depression, PTSD, bronchitis, and chronic arthralgia.

Unfortunately, new and material evidence has not been received to reopen the Veteran's claim. The evidence received since the prior final denial includes VA treatment records from April 1997 through January 2017. These records indicate that the Veteran has a current diagnosis and receives continuous treatment for depression, PTSD, bronchitis, low back pain, and arthralgia. The Veteran does not manifest with either of the following: (1) an undiagnosed illness; or (2) a medically unexplained chronic multisymptom illness, defined by a cluster of signs or symptoms, that became manifest during service or to a compensable degree as per § 3.317 (a).

The Board finds that the newly submitted evidence that the Veteran proffered is new as it was not previously submitted to agency decision-makers; however, it finds that the evidence is not material as it could not reasonably substantiate the Veteran's GWS claim were the claim to be reopened. The Board notes that the Veteran was denied service connection because the evidence failed to show that his symptoms of memory loss, cough, and muscle aches were attributable to an undiagnosed illness, were incurred in or aggravated during active duty service in the Southwest Asia Theater, and that they have manifested to a compensable degree since separation.

The Board has considered the Veteran's own statements regarding his experienced symptoms since returning from his Southwest Asia service. However, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical diagnosis or etiology opinion linking his symptoms to service. Additionally, his symptoms of memory loss have been attributed to his depression, his respiratory symptoms have been attributed to bronchitis, and his arthralgia has been associated with degenerative joint disease. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, medical opinions on establishing a diagnosis the Veteran's reported GWS symptoms service fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372. Moreover, his contentions are duplicative of those previously before the agency. 

The record lacks the necessary probative evidence that the Veteran's current reported symptoms of memory loss, fatigue, muscle pain, and coughing are the result of an undiagnosed illness or medically unexplained chronic multisymptom illness as per 38 C.F.R. § 3.317 (2017) was incurred in or aggravated by his active duty service, is related to such service, or manifest to a compensable degree since service. Additionally, the Veteran has been afforded several VA examinations in relation to his reported GWS symptoms. The VA examiners have assessed the Veteran's reported symptoms via orthopedic, respiratory, and mental health evaluations. No medical opinion links the Veteran's current symptoms he associates with GWS to an undiagnosed illness. Therefore, despite the low threshold in reopening previously denied claims, new and material evidence has not been received to reopen the Veteran's claims for GWS.

Residuals of a burn injury to the eyes

The Veteran contends that he suffers from residuals of an eye injury he suffered in service where his face was burned as a result of a stove malfunction in December 1990. The Veteran's representative argues that the Veteran has submitted new and material evidence that raises a reasonable possibility of substantiating his claim. Specifically, the representative points to recent VA treatment records from which show a complaint of photophobia, possibly related to dry eyes.

The Veteran's service connection claim for an eye disability was initially denied in April 1993. The VA examiner found no residual disability related to the burn injury to the Veteran's face. The examiner did document a refractive error but it is noted that refractive error is not considered a disability under the meaning of the compensation law, but is considered a constitutional/developmental abnormality. 

The Veteran has submitted treatment records from the Fresno VAMC for the period of April 1997 to January 2017. Many of these records are duplicative and were reviewed in the prior rating decisions. These documents indicate continued treatment for symptoms of blurry vision.

The Board finds that the newly submitted evidence that the Veteran proffered is new as it was not previously submitted to agency decision-makers; however, it finds that the evidence is not material as it could not reasonably substantiate the claim were the claim to be reopened. The Board notes that the Veteran was denied service connection because the evidence failed to show a diagnosis of a chronic eye disability due to burn injury or significant visual impairment. The Board has considered the Veteran's own statements regarding his eye injury. However, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical diagnosis on current residuals associated with the eye injury suffered in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, etiology opinions on diagnosing residuals of an eye injury fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372. Moreover, his contentions are duplicative of those previously before the agency. 

The record lacks the necessary probative evidence that the Veteran has a current diagnosis of residuals from an eye injury suffered in service. Additionally, the Veteran has been afforded several VA examinations in relation to his eye symptoms. The VA examiners have assessed the Veteran's eyes and provided adequate etiology opinions ruling out any current eye disability or residuals from an in-service injury. The Veteran's newly submitted evidence does not show a current diagnosis of an eye disability or residuals from an in-service burn to the eyes. The records noted a complaint of photophobia possibly related to dry eyes; however, the record does not establish any current diagnosis of residuals from an in-service eye injury or any visual impairment. Therefore, despite the low threshold in reopening previously denied claims, new and material evidence has not been received to reopen the Veteran's claims for service connection for an eye disability.

II.	Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). 

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id.

The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2017). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id.

Thoracolumbar spine

The general rating formula for diseases and injuries of the spine provides disability ratings based on range of motion, and considers associated neurologic abnormalities, unfavorable anklyosis, and intervertebral disc syndrome; additionally, a disability rating may be assigned under the factors prescribed under Deluca.

 A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. Part 4, including 4.71(a) (2017).

 A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. 

These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id.

The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017).

The Veteran contends that he should be receive a disability rating higher than 20 percent for his low back strain with degenerative disc disease.

In order to meet the 40 percent disabling criteria, under DC 5242 of the general rating formula for diseases and injuries of the spine, forward flexion of the thoracolumbar spine must be limited to 30 degrees or less. With intervertebral disc syndrome (IVDS), the Veteran may be afforded a higher disability rating with the presence of prescribed bedrest due to incapacitating episodes.

Medical examinations show that the Veteran does experience limits in range of motion in his back with pain noted during bending; however, his limitation in motion is not limited to 30 degrees or less. In fact, the limitation in forward flexion of the Veteran's thoracolumbar spine was measured at 60 degrees. The record is absent for any prescribed incapacitating episodes or neurological involvement.

In July 2010, the Veteran was afforded a VA examination for his low back disorder. The examiner noted the Veteran's reports of constant low back that is sharp and throbbing. Reported symptoms of stiffness, weakness, and numbness and flare-ups of pain that occur "all the time" and last from about 5 hours to 5 days. The Veteran noted that pain occurs even with sitting, standing, bending, stooping, pushing, pulling, lifting, overhead work, kneeling, squatting, and walking. 

The examiner noted that the Veteran has functional impairment, including limitation in ambulation, driving ability, and difficulty in performing household chores. On examination, the Veteran exhibited forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion, left lateral flexion, right rotation, and left rotation all to 20 degrees. He had additional pain upon repeated use, but no further limitation of motion. His gait was within normal limits and there was no ankylosis. The Veteran was diagnosed with chronic low back pain with question of intervertebral disc syndrome (IVDS). Neurologic abnormalities are rated separately as per C.F.R. § 4.71 a, Note (1).

The Board finds that the Veteran's low back strain with DDD most closely corresponds to a 20 percent evaluation, but not higher. A 40 percent rating is not warranted as the Veteran exhibits forward flexion to 60 degrees and does not have ankylosis. Also, the Veteran does not suffer from any neurologic abnormalities as per C.F.R. § 4.71 a, Note (1). 

In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. An evaluation in excess of the one currently assigned for the Veteran's lumbar spine disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the rating already assigned. Specifically, while the Veteran has complained of painful flare-ups, pain on mild exertion and repeated use, an inability to participate in strenuous activity, and an inability to sit, stand, or walk for prolonged periods of time, the evidence does not indicate that these flare-ups and pain limit his ability to function to the point necessary for a higher rating. The Board acknowledges that the Veteran does experience pain in his back and has had some functional loss noted in his lower back. However, functional impairment, classified as difficulty in walking, driving, and constant back pain during flare-up, does not approximate to a disability rating in excess of 20 percent. Additionally, while the Veteran has reported having limited functioning during flare-ups, the record does not include any prescribed bedrest to warrant a higher rating.



ORDER

The petition to reopen the previously denied claim for service connection for Gulf War Syndrome with manifestation of undiagnosed muscle aches, memory loss, cough, and fatigue, is denied.

The petition to reopen the previously denied claim for service connection for residuals from a burn injury to the eyes is denied.

Entitlement to an initial rating in excess of 20 percent for lumbar spine strain with DDD is denied.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs