Citation Nr: 1754810 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-01 939 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an undiagnosed illness. 2. Entitlement to service connection for a medically unexplained chronic multisymptom illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1989 to May 1993. The Veteran also served in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Nashville, Tennessee Regional Office (RO). The Board has recharacterized the issue on appeal to accurately reflect the Veteran's contentions. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In February 2017, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a Board hearing. The Veteran waived initial agency of original jurisdiction (AOJ) review of new evidence submitted after notice of certification of his appeal to the Board. 38 C.F.R. §§ 19.37, 20.1304 (2017). A hearing transcript is in the record. FINDINGS OF FACT 1. The Veteran's undiagnosed illness, manifested by dizziness, fatigue, weakness and joint pain, is a qualifying chronic disability, and which has manifested to a compensable degree for a period of at least six months. 2. The Veteran's medically unexplained chronic multisymptom illness, to include general chorea of unknown etiology, is a qualifying chronic disability, and which has manifested to a compensable degree for a period of at least six months. CONCLUSIONS OF LAW 1. The criteria to establish service connection for an undiagnosed illness, manifested by chronic dizziness, fatigue, weakness and joint pain, have been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1137 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.317, 3.326(a) (2017). 2. The criteria to establish service connection for a medically unexplained chronic multisymptom illness, to include general chorea of unknown etiology, have been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1137 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.317, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA issued a November 2012 letter to the Veteran which informed him of the evidence generally needed to support his claim; what actions he needed to undertake; and how VA would assist him in developing his claim. The November 2012 letter was issued to the Veteran prior to the May 2013 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107 (2012). For these reasons, the Board finds that VA's duties to notify and to assist have been met. II. Analysis Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established 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 December 31, 2021 and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i)-(ii) (2017). Under 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. § 1117(d). To determine whether a qualifying chronic disability has manifested to a degree of 10 percent or more, the rating criteria set forth in Chapter 4 of the VA Schedule for Rating Disabilities shall be utilized. 38 C.F.R. § 3.317(a)(5). A medically unexplained chronic multisymptom illness is defined as 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. 38 C.F.R. § 3.317(a)(2)(ii). Objective indications of a chronic disability includes 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). A disability is considered chronic if it existed for 6 months or more or exhibits intermittent episodes of improvement and worsening over a 6-month period. 38 C.F.R. § 3.317(a)(4). 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. Id. Signs and symptoms which may be manifestations of an undiagnosed illness and a medically unexplained chronic multisymptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, 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, and menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran's record indicates that he served in Southwest Asia such that he is entitled to the presumptions for undiagnosed illnesses and medically unexplained chronic multisymptom illnesses. The Veteran asserts that he has body spasms and neurological symptoms due to an undiagnosed illness as a result of his active service in Southwest Asia. The record also shows that the Veteran claims a medically unexplained chronic multisymptom illness - general chorea of unknown etiology. The Veteran's disabilities fit the definition of "chronic" under 38 C.F.R. § 3.317(a)(4). In addition, the Veteran exhibits objective signs and symptoms that are manifestations of an undiagnosed illness and a medically unexplained chronic multisymptom illness under 38 C.F.R. §§ 3.317(a)(3) and 3.317(b). The Veteran reported, along with several buddy statements from family and friends, and medical records confirm, that the Veteran experienced several recurring symptoms - twitching, muscle spasms, fatigue, joint pain and dizziness - from October 2011 to September 2015. The Veteran exhibited objective indications of a qualifying chronic disability that manifested to a degree of 10 percent or more not later than December 31, 2021. The March 2013 VA examiner diagnosed the Veteran with general chorea of unknown cause. The Veteran's service treatment records (STRs), dated May 1989, September 1989, June 1990, September 1990, November 1991 indicate that the Veteran reported no dizziness, fatigue, weakness, joint pain or choreic-like movements during service. However, VA treatment and private treatment medical records indicate that the Veteran reported experiencing several recurring symptoms - twitching, muscle spasms, fatigue, joint pain and dizziness - from October 2011 to September 2015. See 38 C.F.R. § 4.124(a), Diagnostic Code 8105 (assigning a rating of 10 to mild chorea). Private treatment records, dated October 2011 to January 2012, indicate that the Veteran reported several symptoms, but testing and laboratory results resulted in negative findings. An October 2011 neurological review of systems resulted in a positive finding for weakness, but a neurological/psychological examination indicated normal findings. An October 2011 radiology report also resulted in normal findings. In October 2011, the Veteran reported that his legs were twitching and he was unable to stand; however, the examiner observed the Veteran walking into the clinic. In November 2011, the Veteran did not report any twitching or body spasms, and the examiner noted a negative finding for fatigue. In January 2012, the Veteran reported dizziness and the examiner noted a negative finding of fatigue. In June 2012, the Veteran underwent private treatment. The neurological section of the physical examination report noted that the Veteran had involuntary choreic-like movements. Symptoms such as chronic dizziness, fatigue, weakness or joint pain were not noted. All laboratory testing, EKG, and radiology reports showed negative findings. No diagnosis was provided. In December 2012, the Veteran was afforded a VA neurological examination. The VA examiner gave no diagnosis. The Veteran stated to the examiner that he had no medical issues during service and post-service. However, in October 2011, the Veteran stated he began to experience rapid heart rate, dizziness, and body tremors. Since October 2011, the Veteran stated he suffers from constant fatigue, recurrent dizziness and muscle spasms. The examiner reviewed the Veteran's medical file and reported that all previous extensive laboratory work and MRIs resulted in negative findings for anything objectively abnormal. During the December 2012 VA neurological examination, the VA examiner observed the Veteran's body movements as "choreic-like." After extensive testing, the examiner opined that the Veteran's reported symptoms - chronic dizziness, fatigue, and choreic-like movements - have no clear cut etiology. The examiner further opined that the Veteran's symptoms were not caused by his service in Southwest Asia because the rapid onset of his symptoms - approximately twenty years post-service - makes it unlikely to associate to any toxin the Veteran was exposed to during service in Southwest Asia. However, in claims based on a qualifying chronic disability, 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. 1, 8 (2004). In January 2013, the Veteran underwent VA neurological treatment. The Veteran was diagnosed with abnormal movement body disorder of unknown etiology. The Veteran did not report chronic dizziness, fatigue, weakness, or joint pain, but he stated that his choreic-like movements have been stable, although he continues to undergo abnormal movements of his arms, shoulders and neck. Upon examination, the examiner noted that the Veteran experiences choreic-like movements of his arms, neck, and shoulders but there is no evidence of chorea. Laboratory tests and an MRI resulted in normal findings. In March 2013, the Veteran was afforded a VA Gulf War medical examination. The Veteran was diagnosed with general chorea of unknown cause. The Veteran only reported neurological signs and symptoms, not dizziness, fatigue, weakness or joint pain. The VA examiner indicated a normal finding after a physical examination. The examiner referenced the December 2012 VA neurological examination along with the current examination of the Veteran, and opined that the Veteran's general chorea of unknown cause - a diagnosed but medically unexplained illness - was not caused by the Veteran's service in Southwest Asia due to the rapid onset of his symptoms approximately twenty years post-service. Because the Veteran's claim is based on a qualifying chronic disability, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Id. VA treatment records dated August 2013 to September 2015 indicate that the Veteran reported several relevant symptoms. In January 2014, the Veteran reported muscle spasms in his lower legs and was diagnosed with choreic-like movement disorder localized to the upper extremities, shoulders, neck, accompanied by general weakness, fatigue, joint pain, muscle spasm and twitching. In June 2014, the Veteran reported constant dizziness and muscle spasms throughout the day, and the examiner noted that the Veteran had a restless appearance with constant movement. In July 2014, the Veteran reported constant dizziness, joint pain and muscle spasms. In January 2015, the examiner noted no abnormal chorea-like movements. In March 2015, the Veteran reported continuing muscle spasms. In September 2015, the examiner noted no abnormal movements. In an undated private treatment progress note from Medstar Georgetown University Hospital, it was noted that the Veteran reported chorea-like movements; however, the examiner noted that he did not observe indications of chorea in the Veteran. Further notations indicate dizziness listed under an anxiety section, and fatigue listed under a major depression section. This examination is of low probative value because it contains merely data and conclusions, does not provide an etiological opinion, and is not based upon a review of the Veteran's pertinent medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's STRs indicate that the Veteran did not report his symptoms during service. However, the Veteran's post-service reports, buddy statements from family and friends, and VA treatment and private treatment medical records indicate that the Veteran experienced several recurring symptoms - twitching, muscle spasms, fatigue, joint pain and dizziness - from October 2011 to September 2015. The December 2012 VA examiner opined that the Veteran's reported symptoms - chronic dizziness, fatigue, and choreic-like movements - have no clear cut etiology. The March 2013 VA examiner diagnosed the Veteran with general chorea of unknown cause - a medically unexplained chronic multisymptom illness. For these reasons, and resolving all reasonable doubt in favor of the Veteran, service connection is warranted and the claims are granted. ORDER Service connection for an undiagnosed illness is granted. Service connection for a medically unexplained chronic multisymptom illness is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs