Citation Nr: 18158114 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 13-24 866A DATE: December 18, 2018 ORDER Entitlement to service connection for a chronic undiagnosed or multisymptom illness, manifested by a headache disorder is granted. Entitlement to service connection for a chronic undiagnosed or multisymptom illness, manifested by neurological symptoms to include seizures, tics, twitches, and muscle spasms is granted. Entitlement to service connection for a heart disorder, to include an undiagnosed condition secondary to service in Southwest Asia, is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease is remanded. FINDINGS OF FACT 1. The Veteran served in Southwest Asia from September 1990 to March 1992. 2. Resolving all reasonable doubt in the Veteran’s favor, an undiagnosed illness or multisymptom illness manifested by headaches is related to the Veteran’s service. 3. Resolving all reasonable doubt in the Veteran’s favor, an undiagnosed illness or multisymptom illness manifested by neurological symptoms to include seizures, tics, twitches, and muscle spasms is related to the Veteran’s service. 4. The preponderance of the evidence is against a finding that the Veteran has had symptoms of a diagnosed or undiagnosed heart condition during the period on appeal. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for an undiagnosed illness or multisymptom illness manifested by headaches are met. 38 U.S.C. §§ 1110, 1113, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.317 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for an undiagnosed illness or multisymptom illness manifested by neurological symptoms to include seizures, tics, twitches, and muscle spasms are met. 38 U.S.C. §§ 1110, 1113, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.317 (2018). 3. The criteria for entitlement to service connection for a heart condition, to include an undiagnosed condition as secondary to service in Southwest Asia, have not been satisfied. 38 U.S.C. §§ 1110, 1117, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1989 to September 1993, to include service in Southwest Asia during the Persian Gulf War. This case comes on appeal of January and May 2012 rating decisions. In June 2018, the Veteran and the Veteran’s fiancée testified at a videoconference hearing before the Board. The Board notes that VA has been unable to obtain the Veteran’s service treatment records. In October 2011, VA issued a formal finding that the service treatment records were unavailable. In doing so, VA outlined the steps taken to obtain the records as well as the opportunities afforded to the Veteran to provide them. When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in government control which would have required VA to disprove a claimant’s allegation of injury or disease). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Furthermore, under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. The period within which such disabilities must become manifest to a compensable degree in order for entitlement to compensation to be established is currently December 31, 2021. See 38 C.F.R. § 3.317(a)(1)(i). A “qualifying chronic disability” may include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness, to include chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, 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. § 1117(a)(2). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include: (1) fatigue, (2) signs or symptoms involving skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, (13) menstrual disorders. 38 C.F.R. § 3.317(b). 1. Entitlement to service connection for a headache disorder, to include as secondary to service in Southwest Asia The Veteran first filed a claim of entitlement to service connection for headaches in June 2010. According to the Veteran’s June 2018 hearing testimony, he began experiencing headaches during his military service in the Persian Gulf, and has continued experiencing them regularly, on a sporadic basis, since then. He further explained that he experiences headaches once or twice a week and has done so for decades. The Veteran, as a layperson, is competent to describe his symptoms as he has experienced and observed them. The Veteran’s post-service treatment records include occasional complaints of headaches—described by the Veteran as related to sinus pressure—but do not include diagnosis of a headache condition. In April 2012, the Veteran underwent a VA examination for headaches. There, the examiner diagnosed tension headaches but did not diagnose an underlying chronic headache condition. The examiner relayed the Veteran’s reports that headaches occurred three to four times per week and began without triggers or aurae, and that headaches formed as a “squeezing” pain “like a band” behind the eyes and temples. The examiner opined that headaches were not part of a multisystem illness and were less likely as not related to any type of exposure during service in Southwest Asia. In support of his claim, the Veteran submitted a March 2017 letter from Dr. B.A.G., a medical and research doctor with expertise in Gulf War Illness. Dr. B.A.G. reported that the Veteran had provided medical information as part of participation in a Gulf War Illness study. Based on the Veteran’s information, Dr. B.A.G. reported that the Veteran “clearly meets CDC and Kansas inclusion criteria for Gulf War Illness.” Dr. B.A.G. opined that the Veteran’s chronic headaches qualified toward the criteria for a chronic multisymptom illness. In this case, the Board finds that the evidence is at least in relative equipoise to support the Veteran’s claim of entitlement to service connection for a headache condition. The Veteran, having served in the Southwest Asia theater of operations from November 1990 to March 1992 is a qualifying Persian Gulf Veteran under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(a). Although the April 2012 VA examiner diagnosed tension headaches, the diagnosis was first made at the time of that examination. The examiner did not identify a chronic headache condition and did not provide any other explanation for the diagnosis, to include how the Veteran could have complained of headaches for many years without any diagnosis. Furthermore, the April 2012 examination represents the only time in the Veteran’s medical record where a headache diagnosis is provided. In contrast, the March 2017 letter from Dr. B.A.G. supports the Veteran’s claim. Dr. B.A.G.’s conclusion is persuasive to the extent that it demonstrates clinical confirmation of a relationship between the Veteran’s headache symptoms and a chronic multisymptom illness. As stated by the Veteran, his headache symptoms began while he was serving in the Persian Gulf. The Board finds no reason to call this assertion into question. Therefore, resolving all reasonable doubt in the Veteran’s favor, he has shown symptoms of an undiagnosed or chronic multisymptom illness that became manifest while he was serving on active duty in Southwest Asia. This entitles him to presumptive service connection under 38 U.S.C. § 1117(a)(1) and 38 C.F.R. § 3.317. Accordingly, service connection for a headache condition is granted. 2. Entitlement to a neurological disorder, claimed as seizures with random tics, twitches, and muscle spasms, to include as secondary to service in Southwest Asia The Veteran first filed a claim of entitlement to service connection for seizures and muscle spasms in June 2010. To date, the Veteran has not had a diagnosis of a seizure condition. Indeed, in his June 2018 hearing, he testified that he has does not have a diagnosis of epilepsy and that doctors have tried to induce seizures in him to confirm a diagnosis but have been unable to do so. In the same hearing, the Veteran’s fiancée testified that the Veteran will start to smell something before a seizure happens and he will call for her. At that point, she will have him lie down and his eyes will roll in the back of his head, after which he will be “completely out” for 10 to 30 seconds. The Veteran also testified that he has experienced random, unexplained involuntary tics, twitches, and muscle spasms. Post-service treatment records show that the Veteran went to the Emergency Department at San Diego VA Medical Center in June 2010 after having what he believed was a seizure. He had called 9-1-1 earlier but had deferred hospital treatment. At the time, he stated that he had had three similar events over the past year and a half, during which he would experience bloating, nausea, and then “passing out.” On that day, he had “smelled a burning electrical smell and had déjà vu.” He then passed out on the couch. When he woke up, he was sweating and, after waking up, he felt “foggy-headed” and had nausea. In April 2012, the Veteran underwent a VA examination for seizures. At that time, the examiner reported a diagnosis of psychomotor epilepsy dating back to 2010. It appears, however, that this diagnosis was based on the Veteran’s stated history and Emergency Department visit, rather than any diagnostic procedures. Indeed, the examiner reported, “It is unclear as to whether or not he has ever had a definitive diagnosis of seizures,” and that “following the last episode he was briefly hospitalized…and saw a neurologist. An EEG was done with hyperventilation and photic stimulation, this study was normal. A head CT scan was also normal.” The examiner later reported that diagnosis of a seizure disorder had not been confirmed. The examiner opined that the Veteran’s symptoms were not part of a multisymptom illness or due to exposure in Southwest Asia, but did not offer an explanation, other than that the symptoms began more than 10 years after any exposure. In the March 2017 letter submitted by the Veteran, Dr. B.A.G. explained that the Veteran had “multiple symptoms within the cognitive domain,” as well as “autonomic symptoms and chemical sensitivity, which are markedly elevated in Gulf War illness.” In support of his claim, the Veteran also submitted a letter from Dr. E.P., a naturopathic doctor. Dr. E.P. reported that she had been treating the Veteran since August 2016 and that the Veteran had presented with symptoms including pseudo seizures. After completing several diagnostic tests, they had yet to identify a root cause of the Veteran’s neurological ailments. Citing research from Dr. B.A.G., Dr. E.P. noted that “Gulf Veterans are known to have been widely exposed to acetylcholinesterase inhibitors…These inhibitors have known mitochondrial toxicity and generally show the strongest and most consistent relationship to predicting Gulf War Illness. The classic presentation for mitochondrial illness involves multiple symptoms spanning many domains, similar to what we see in Gulf War illness. These classically include fatigue, cognitive and other brain-related challenges, muscle problems and exercise intolerance, with neurological and gastrointestinal problems also common.” Dr. E.P. concluded that she believed that the Veteran’s Persian Gulf service was a “huge contributing factor” to his health. Based on the foregoing, the Board finds that the evidence is at least in relative equipoise that the Veteran’s seizures are related to a chronic undiagnosed or multisymptom illness. The medical record demonstrates that—aside from an unsupported diagnosis on the Veteran’s April 2012 examination—the Veteran’s condition has not been linked to an underlying diagnosis. Although the symptoms he has described have not been observed in a medical setting, he is competent to report those symptoms as he has observed them. Furthermore, his fiancée testified to symptoms in June 2018 that were similar to those found in the Veteran’s June 2010 medical record, indicating consistency over time. The Veteran has not indicated that his seizures began during service, therefore to qualify for presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, the illness must have manifested to a degree of 10 percent during the presumptive period prescribed by the Secretary—currently expiring after December 31, 2021. Under the General Rating Formula for Major and Minor Epileptic Seizures, a 10 percent rating is awarded for a confirmed diagnosis of epilepsy with a history of seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Here, given that the Veteran’s seizures are related to a chronic, undiagnosed or multisymptom illness, there is obviously no diagnosis of epilepsy. However, given that the Veteran’s condition is marked by a history of seizures, the Board finds that this sufficiently approximates the criteria for a 10 percent rating. As the Veteran has neurological symptoms, related to a chronic undiagnosed or multisymptom illness, that manifested to at least 10 percent disabling within the prescribed presumptive period, he is entitled to presumptive service connection under 38 U.S.C. § 1117(a)(1) and 38 C.F.R. § 3.317. 3. Entitlement to service connection for a heart disorder, to include as secondary to service in Southwest Asia The Veteran first filed a claim of entitlement to service connection for “heart issues” in June 2010, followed by a second claim form identifying “heart PVCs.” There is no clear diagnosis of a heart condition in the Veteran’s record. A June 2006 psychiatric consultation with Dr. J.S.K. reported “history of mitral valve prolapse for which [the Veteran] will be undergoing an ultrasound in the near future.” It is unclear, however, whether this medical history was taken from medical records or from the Veteran’s own reports, as there is no documentation of a prior mitral valve prolapse. In February 2006, the Veteran had undergone an exercise treadmill test, overseen by Dr. D.M.B. Dr. D.M.B. reported that the test was negative for coronary insufficiency and that no significant cardiac symptoms were noted throughout the test, although the Veteran did have a mild anxiety attack with reflex tachycardia three minutes into recovery. In October 2008, the Veteran reported to the emergency room at Sharp Coronado Hospital with a 24-hour history of midsternal chest pain. Diagnostic tests revealed a normal sinus rhythm with no evidence of right heart strain. The examining physician reported that it was likely that chest pain was due to a variant of gastroesophageal reflux. At a follow-up appointment 10 days later, Dr. G.d.l.P. reported that the severe chest pain had occurred after the Veteran decided on his own to stop taking medication that was treating gastroesophageal reflux. Dr. G.d.l.P. noted that there was no evidence of a cardiac issue and that the Veteran’s symptoms had returned to normal after restarting the medication. Dr. G.d.l.P. concluded that the Veteran’s chest pain was “most likely reflux related.” In September 2013, the Veteran underwent a VA heart conditions examination. There, the examiner reported that the Veteran did not have, nor had he ever had, a diagnosed heart condition. The Veteran reported to the examiner that he had been experiencing brief episodes of “skipping heartbeats” that resolved in less than a minute without intervention, beginning in 1996 or 1997. The Veteran stated that his skipped heartbeats were associated with his symptoms of irritable bowel syndrome. According to the examination report, the Veteran did not have a heart condition that qualified as ischemic heart disease. Continuous medication was not required to control a heart condition. The Veteran had not had a myocardial infarction, congestive heart failure, cardiac arrhythmia, or a heart valve condition. There was no history of an infectious cardiac condition, pericardial adhesions, or any surgical or non-surgical procedures for the treatment of a heart condition. On physical examination, the Veteran’s heart rhythm was regular and heart sounds were normal. There was no evidence of cardiac hypertrophy or cardiac dilatation. An echocardiogram was performed and the results were normal. An interview-based METs test was conducted and the Veteran denied experiencing symptoms with any level of physical activity. The examiner concluded that there was no cardiac diagnosis based on the Veteran’s reported history and available treatment records in his file, as well as an unremarkable examination and normal echocardiogram (ECG) that day. In his June 2018 hearing before the Board, the Veteran testified that when he was 26 years old—which would be sometime in 1997 or 1998, based on the record—he was told he had preventricular contractions (PVCs) and was given a Holter monitor for a period of time. Although the Veteran has previously been given the opportunity to identify records of this diagnosis and treatment, no such records exist in the claims file. Moreover, this diagnosis would have predated the claim and has been followed by additional treatment and examinations which would provide a more accurate documentation of the Veteran’s condition throughout the period on appeal. The Board notes that the Veteran, as a layperson, is competent to describe the symptoms he has experienced but is not competent to provide diagnoses or causal links that require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, although the Veteran has reported “heart palpitations” and “skipping heartbeats” both independently and in association with irritable bowel syndrome, there is no medical indication that he has an actual, diagnosed heart condition. Indeed, throughout the medical record, the Veteran’s perceived cardiac symptoms have, upon examination and testing, not been found to be accompanied by any cardiac deficiency. Instead, they have on multiple occasions been determined to be symptoms of gastroesophageal reflux. Accordingly, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a heart condition at any point during the claim period. As the preponderance of the evidence is against this finding, the Veteran fails to meet the first requirement for service connection on a direct basis, and the claim must be denied. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that, under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, “cardiovascular signs or symptoms” may be considered manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness. Here, however, the Veteran’s symptoms have been attributed to gastroesophageal reflux and are therefore not undiagnosed or unexplained. Furthermore, to qualify for service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, the symptoms must either have started in service or manifest to a degree of 10 percent compensability during the presumptive period. Under the schedule of ratings for diseases of the heart—38 C.F.R. § 4.104, Diagnostic Codes 7000-7020—a rating of 10 percent requires at least one of the following: a need for continuous medication or pacemaker; a workload of 7 to 10 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; permanent atrial fibrillation; or one to four episodes per year of paroxysmal atrial fibrillation, or other supraventricular tachycardia documented by ECG or Holter monitor. Even if the Veteran’s alleged cardiac symptoms were not caused by gastroesophageal reflux, there is no evidence that they have met any of the criteria that would warrant at least a 10 percent rating under any of the analogous ratings for diseases of the heart. Accordingly, presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. REMANDED ISSUE 1. Entitlement to service connection for gastroesophageal reflux disease is remanded. Private medical records document that in November 2008, the Veteran underwent an esophagogastroduodenoscopy with Dr. G.d.l.P. The indication based on this study was a diagnosis of gastroesophageal reflux disease (GERD). The Veteran has stated that he believes GERD is caused or exacerbated by his service-connected irritable bowel syndrome (IBS), noting that the symptoms he related to a heart condition—and that doctors related to GERD—were often concurrent to symptoms of IBS. To date, there has not been a medical opinion addressing whether the Veteran’s GERD may be caused or aggravated by service-connected IBS. Accordingly, a remand is necessary to obtain such an opinion. The matter is REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran’s GERD. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any gastroesophageal disability was caused or aggravated by a service-connected disability, to include IBS. If the examiner determines that a new examination is necessary before an opinion can be provided, the Veteran should be scheduled for a new examination. The examiner should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. 2. Once the aforementioned development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel