Citation Nr: 1808978 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-14 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for bilateral foot and toe, bilateral ankle, bilateral knee, and right hip joint pain due to an undiagnosed illness or other qualifying chronic disability ("joints disability"), and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for loss of hand grip, muscle weakness, fatigue, and swelling of body parts, to include swelling in hands, penis and tongue, due to an undiagnosed illness or other qualifying chronic disability ("chronic undiagnosed disability"), and if so, whether the reopened claim should be granted. 3. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for memory loss due to an undiagnosed illness or other qualifying chronic disability ("memory loss disability"), and if so, whether the reopened claim should be granted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active military service from September 1981 to June 1996, to include service in Southwest Asia. The Board has reviewed this case in some detail: This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that in a March 2017 rating decision, the RO granted service connection for a skin condition/disorder (face only) (also claimed as crawling feeling over upper torso and face) due to Gulf War Syndrome and assigned a noncompensable rating effective July 13, 2009, and granted service connection for a positive tuberculin skin test and assigned a noncompensable rating effective September 11, 2009, which represents a full grant of the benefit sought - service connection. Therefore, the issues are no longer before the Board. In March 2015, the Veteran was afforded a travel board hearing. A transcript of that hearing is associated with the claims file. However, the Veterans Law Judge who presided over that hearing is no longer with the Board. In an April 2016 letter, the Veteran was notified of that fact and offered the opportunity to have a hearing before a current member of the Board. In a May 2016 response, the Veteran indicated that he did not wish to appear at another Board hearing. The Board notes that the Veteran's May 10, 2013 VA Form 9 appeal to the Board was not considered to be timely with regard to the issues listed above as it was received by VA more than one year from the date of the May 25, 2010 rating decision and more than sixty days from the date of the September 7, 2012 Statement of the Case. Consequently, the May 2010 decision is final with regard to the claim for memory loss due to Gulf War Syndrome or undiagnosed illness. This case was previously before the Board in June 2016, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. An unappealed January 2007 rating decision denied entitlement to service connection for a joints disability and for a chronic undiagnosed disability. 2. An unappealed May 2010 rating decision denied entitlement to service connection for memory loss due to an undiagnosed illness or other qualifying chronic disability. 3. The evidence associated with the claims file subsequent to the January 2007 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a joints disability and for a chronic undiagnosed disability. 4. The evidence associated with the claims file subsequent to the May 2010 rating decision is cumulative or redundant of the evidence already of record, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for memory loss due to an undiagnosed illness or other qualifying chronic disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a joints disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a chronic undiagnosed disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. A joints disability is not etiologically related to the Veteran's active service and is not presumed to be due to an undiagnosed illness or other qualifying chronic disability. 38 U.S.C. §§ 1110, 1117, 1118, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 4. A chronic undiagnosed disability is not etiologically related to the Veteran's active service and is not presumed to be due to an undiagnosed illness or other qualifying chronic disability. 38 U.S.C. §§ 1110, 1117, 1118, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 5. New and material evidence has not been received to reopen a claim of entitlement to memory loss due to an undiagnosed illness or other qualifying chronic disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence January 2007 Rating Decision A January 2007 rating decision denied entitlement to service connection for joint aches and stiffness and entitlement to service connection for loosing hand grip, right (dominant) muscle weakness, fatigue and swelling of body parts based on a finding that there was no medical evidence of a current diagnosis or that symptoms were due to an undiagnosed illness that manifested to a compensable degree within the presumptive period. The Veteran did not appeal that decision. The pertinent evidence that has been received since the January 2007 rating decision includes lay statements submitted by the Veteran, his wife, his employer, and his friend, and VA examination reports from April 2010 and January 2017 showing current diagnoses of the following: joint-related issues to include bilateral pes planus, metatarsalgia, plantar fasciitis, and hallux valgus; bilateral ankle tendinitis; bilateral knee patellofemoral syndrome (PFS) and degenerative arthritis; and right hip osteoarthritis; and hand grip, muscle weakness, fatigue and swelling of body parts issues, to include chronic right wrist sprain and bilateral wrist degenerative joint disease (DJD); and bilateral hand DJD with right thumb/right little finger sprain. The Board finds that the Veteran's lay statements and accompanying buddy statements attesting to worsening symptomatology, and more importantly, the April 2010 and January 2017 VA examination reports including clinical diagnoses associated with reported symptoms are new and material. The Board notes that they are not cumulative or redundant of the evidence previously of record. Moreover, they raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for a joints disability and entitlement to service connection for a chronic undiagnosed disability is warranted. May 2010 Rating Decision A May 2010 rating decision denied entitlement to service connection for memory loss due to Gulf War Syndrome based on a finding that there was no medical evidence of a current diagnosis and not finding that reported symptoms were due to an undiagnosed illness that manifested to a compensable degree within the presumptive period. The Veteran's VA Form 9 substantive appeal to the Board was received by VA in May 2013, more than one year from the date of the May 2010 rating decision and more than sixty days after the issuance of the September 2012 Statement of the Case. As such, the appeal was not timely and the decision was final. 38 C.F.R. § 7105 (2017). The pertinent evidence that has been received since the May 2010 rating decision includes lay statements submitted by the Veteran and VA examination reports from November 2010 and January 2017 noting no medical evidence of a clinical diagnosis of memory loss, to include as due to Gulf War Syndrome. In fact, VA examiners have opined that the Veteran's poor sleep habits more than likely are the cause of his fatigue and memory loss symptoms, not the Gulf War. With regard to the Veteran's claim for entitlement to service connection for memory loss, the Board finds that the evidence added to the record since the May 2010 rating decision is not new and material. The additional evidence is redundant and fails to indicate that the Veteran has a diagnosed memory loss disability. As no additional evidence showing that the Veteran may have a current memory loss disability has been added to the record, the evidence is not sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, because new and material evidence has not been received, reopening of the claim of entitlement to service connection for memory loss, to include as due to Gulf War Syndrome or due to an undiagnosed illness, is not warranted. Service Connection Joints The Veteran contends that his bilateral foot and toes, bilateral ankle, bilateral knee, and right hip issues are caused by or the result of active military service. In the alternative, the Veteran asserts that the various joint issues are due to an undiagnosed illness or other qualifying chronic disability. STRs were silent for complaints, treatment, or clinical diagnosis of joint pain of any kind during the Veteran's 15 year period of active service. With specific regard to the Veteran's SW Asia service, he explicitly denied any episodes of swollen or painful joints or recurrent back pain on his Persian Gulf Illness Comprehensive Clinical Evaluation in August 1994. STRs show the Veteran was placed on a physical profile once during active service for appendicitis. The Veteran's lay statements of record discuss his service history of long marches in full combat gear. The Veteran reported he participated in the Nijmegan Competition March in the Netherlands during his period of active service, which requires a 100-mile march in full combat gear over a four day period. He noted that only service members who had accumulated 700 to 1000 miles of recorded marches in their military career qualified for the competition. The Veteran also described a variety of environmental exposures during his SW Asia service, to include burning oil wells and black smoke, burning and decomposing bodies, and blowing silica dust. Based on SW Asia service and related environmental exposures, as well as his extensive full gear march history, the Veteran claimed his current disabilities were caused by or the result of impacts from active service. At an April 2010 VA examination, the Veteran reported persistently worsening foot, ankle, and hip pain, but did not report knee pain. He stated he had more severe foot and ankle pain than hip pain at that time, and that mornings were particularly difficult due to severe bilateral foot pain that made it difficult to get up and walk; he added that he had similar foot pain after sitting or resting for a while and then getting up to walk again. The Veteran reported occasional swelling of the ankles and no history of ankle injuries. The examiner noted that the Veteran's complaints of hip pain were actually pain in the lower lumbar area with radiation laterally toward the rim of the pelvis on each side. X-rays of the bilateral foot showed no evidence of fracture, dislocation, soft tissue swelling or heel spur in either foot, and x-rays of the lumbar spine showed no evidence of fracture, spondylolisthesis, or significant narrowing of the disc spaces. There was a mild abnormality noted of 2 left hemipelvic phleboliths. The examiner diagnosed mild bilateral metatarsalgia; severe bilateral pes planus; right foot plantar fasciitis; and chronic strain of both sacroiliac joints, and noted the Veteran functioned at a very high activity level. The examiner further noted that the Veteran did not have any disease process that would be labeled undiagnosed illness even though he reported numerous subjective complaints. Importantly, the examiner opined that the claimed symptoms were not related to the Veteran's active service, and stated that the Veteran was generally very healthy, active, and without any signs of debilitation or chronic disease. At January 2017 VA examinations for foot, ankle, knee, and hip issues, the Veteran reported experiencing chronic bilateral foot, ankle, knee, hip, and back pain and stiffness since his period of active service in the 1990s. With regard to his feet, he reported developing bilateral pes planus with intermittent plantar fasciitis in active service and that he was supplied with arch supports. The Veteran also reported bilateral hallux valgus development with bunion formation on the left foot in addition to diffuse bilateral metatarsalgia. With regard to his ankles, the Veteran reported bilateral ankle discomfort and stiffness, right greater than left, for many years. With regard to his knees, he reported chronic bilateral knee grinding and popping with movement, with increasing discomfort with prolonged walking or standing. With regard to his hips, the Veteran reported chronic right hip pain and mild stiffness with flexion of the right hip joint. Foot x-rays revealed bilateral forefoot DJD with mild bilateral foot swelling. Ankle x-rays revealed no documented arthritis, but did show mild soft tissue swelling bilaterally with chronic fragmentation of the right medial malleoulus consistent with old injury. Knee x-rays revealed mild bilateral infrapatellar swelling and trace amount of knee joint fluid, and mild bilateral medical compartment joint space loss, right worse than left. Hip x-rays revealed mild to moderate bilateral hip DJD with joint space loss worse on the right than left. The examiner diagnosed bilateral pes planus with bilateral plantar fasciitis, bilateral hallux valgus with left bunion, and bilateral metatarsalgia; bilateral ankle tendinitis; bilateral knee PFS and degenerative arthritis; and right hip osteoarthritis. The January 2017 VA examiner opined that the Veteran's current bilateral foot, ankle, knee, and right hip disabilities, were not proximately due to or caused by active service or Gulf War exposure. The examiner noted the absence of any complaints, treatment, or clinical diagnosis of any joint issues during the Veteran's period of active service as well as the fact that ankle, knee, and hip pathologies as well as the Veteran's foot issues were not presumptive conditions of Gulf War exposure. Therefore, the examiner stated, service connection was not substantiated with regard to any of the claimed issues. The April 2010 examination and opinion report and January 2017 examination and opinion reports are adequate, when read in conjunction with one another, as the medical officer thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, as the Veteran has not submitted any contrary opinions, the VA opinions are the most probative of the evidence. The Board further notes that the Veteran first complained of joint pain and stiffness symptoms in April 2006, nearly 10 years after separation from service; therefore, the evidence of record does not indicate continuity of symptomatology on which to base a theory of entitlement to service connection. Both the facts of this case, and the medical opinions, provide evidence against this claim. Further, while the Veteran is competent to report joint pain and stiffness symptoms, he is not competent to link his current diagnoses to his active service. An opinion of that nature requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Simply stated, the Veteran is not medically qualified to diagnosis his own problems, and then relate them to service, Gulf War Syndrome, or an event in service many years ago. Therefore, the Veteran is not competent to provide an etiology opinion in this case. Also, there is no indication from the record that the Veteran was diagnosed with arthritis within one year of separation from active service; therefore, presumptive service connection is not applicable in this case. Further, while the Veteran has qualifying SW Asia service, presumptive service connection for undiagnosed illness or other qualifying chronic disability is not applicable as the Veteran has not been diagnosed with a medically unexplained chronic multi-symptom illness, a listed infectious disease, or a qualifying chronic disability such as chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome. 38 C.F.R. § 3.317 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for joints disability, to include a bilateral foot and toe, ankle, knee, and right hip disability, is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Chronic Undiagnosed Disability The Veteran contends that his symptoms of loss of hand grip, muscle weakness, fatigue, and swelling of body parts, to include swelling in hands, penis and tongue ("chronic undiagnosed disability") is caused by or the result of active service. In the alternative, the Veteran asserts that his chronic undiagnosed disability is due to an undiagnosed illness or other qualifying chronic disability. STRs are silent for any complaint, treatment, or clinical diagnosis of hand issues, muscle weakness, and chronic fatigue during active service. STRs show the Veteran was treated once in November 1988 for a swollen face lasting 5 hours, at which time he also reported an episode of swollen tongue approximately one month prior. The Veteran was treated with Benadryl for face swelling; no follow up, further complaints or sequelae were reported. The Board notes that this was prior to the Veteran's deployment to SW Asia from December 1990 to May 1991. With regard to chronic fatigue, there was one instance where the Veteran noted experiencing some sort of fatigue on an August 1994 medical questionnaire, but no further indication of such entered the record prior to separation from service. The post-service treatment notes of record reveal the Veteran reported waking up with an abnormally swollen throat in August 2011, but followed up the next day to report his issue had resolved and that he did not wish to seek treatment at that time. In March 2012, the Veteran complained of intermittent swelling of legs and hands at a VA primary care visit. Review of the medical evidence of record yielded no further reports or treatment for loss of hand grip, muscle weakness, or chronic fatigue. At a series of VA examinations in January 2017, the Veteran reported progressive weakness of bilateral hand grip strength; chronic right wrist pain and stiffness; diffuse body part swelling including his hands, penis, and tongue; and problems with chronic fatigue since his period of active service in the 1990s. The Veteran further reported he sprained his right thumb and little finger during active service, and stated he now has residual deformities of both, with decreased ROM at the thumb metacarpophalangeal joint (MCP) joint and the little finger proximal interphalangeal (PIP) joint. Hand and finger x-rays revealed bilateral degenerative arthritis in multiple joints of the same hand, to include the thumb and fingers with bilateral degenerative changes and flexion at the right fifth PIP joint. Wrist x-rays revealed bilateral DJD worse at the carpometacarpal and triscaphe articulations. The examiner diagnosed bilateral hand arthritis with right thumb and right fifth finger sprain; chronic right wrist sprain; and explicitly stated that the Veteran had no formal diagnosis of chronic fatigue syndrome. The examiner opined that the Veteran's current chronic fatigue was due to poor sleep habits rather than to some undiagnosed illness or chronic fatigue syndrome. The January 2017 VA examiner opined that the Veteran's current bilateral hand arthritis with right thumb and fifth finger sprain and chronic right wrist sprain disabilities were not proximately due to or caused by active service or Gulf War exposure. The examiner noted the absence of any complaints, treatment, or clinical diagnosis of any hand, wrist, or chronic muscle weakness and/or fatigue issues during the Veteran's period of active service as well as the fact that hand and wrist pathologies were not presumptive conditions of Gulf War exposure. Therefore, the examiner stated, service connection was not substantiated with regard to any of the claimed issues. In addition, the Veteran was afforded a January 2017 Gulf War general medical examination based on claims that his symptoms were due to an undiagnosed illness or to Gulf War exposures manifesting as Gulf War Syndrome. The examiner stated that the Veteran had no diagnosed illnesses with no etiology, and no signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. Based on the one STR of facial and tongue swelling without sequelae in 1988, the examiner opined that the Veteran's current complaints of diffuse body part swelling were less likely as not connected to active service. The January 2017 examination and opinion reports are the most probative evidence of record. The medical officer thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, as the Veteran has not submitted any contrary opinions, the VA opinions are the most probative of the evidence. The Board further notes that the Veteran first complained of loss of hand grip strength, muscle weakness, chronic fatigue, and swelling of body parts in April 2006, nearly 10 years after separation from service; therefore, there is no continuity of symptomatology on which to base a theory of entitlement to service connection. Further, while the Veteran is competent to report loss of hand grip strength, muscle weakness, fatigue, and swelling of body parts symptoms, he is not competent to link his current diagnoses to his active service. An opinion of that nature requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Also, there is no indication from the record that the Veteran was diagnosed with arthritis within one year of separation from active service; therefore, presumptive service connection is not applicable in this case. Further, while the Veteran has qualifying SW Asia service, presumptive service connection for undiagnosed illness or other qualifying chronic disability is not applicable as the Veteran has not been diagnosed with a medically unexplained chronic multi-symptom illness, a listed infectious disease, or a qualifying chronic disability such as chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome. 38 C.F.R. § 3.317 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for chronic undiagnosed disability, to include loss of hand grip, muscle weakness, fatigue, and swelling of body parts, to include swelling in hands, penis and tongue, due to an undiagnosed illness or other qualifying chronic disability ("chronic undiagnosed disability"), is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for bilateral foot and toe, bilateral ankle, bilateral knee, and right hip joint pain due to an undiagnosed illness or other qualifying chronic disability ("joint disability"), is granted. Entitlement to service connection for bilateral foot and toe, bilateral ankle, bilateral knee, and right hip joint pain due to an undiagnosed illness or other qualifying chronic disability ("joint disability"), is denied. New and material evidence has been received and reopening of the claim of entitlement to service connection for loss of hand grip, muscle weakness, fatigue, and swelling of body parts, to include swelling in hands, penis and tongue, due to an undiagnosed illness or other qualifying chronic disability ("chronic undiagnosed disability"), is granted. Entitlement to service connection for loss of hand grip, muscle weakness, fatigue, and swelling of body parts, to include swelling in hands, penis and tongue, due to an undiagnosed illness or other qualifying chronic disability ("chronic undiagnosed disability"), is denied. New and material evidence has not been presented to reopen the claim of entitlement to service connection for memory loss, to include as due to an undiagnosed illness or other qualifying chronic disability ("memory loss disability"), and that claim is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs