Citation Nr: 0007570 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-15 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for aching joints, sore muscles, fatigue, chest pain, headaches, and stomach problems, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from June 1988 to January 1992. He had service in Southwest Asia from August 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In his September 1998 substantive appeal, the veteran indicated that he did not wish to appeal the issues of service connection for sinus problems and a psychiatric disorder to include post-traumatic stress disorder. Accordingly, these issues are not currently before the Board. FINDINGS OF FACT 1. The February 1998 VA examination shows a diagnosis of fibromyalgia on the basis of fatigue, tenderness, and myalgia. There is no competent medical evidence of a nexus between the veteran's fibromyalgia and his period of active duty service. 2. The veteran's chest pain is characterized as intercostal or musculoskeletal. There is no competent medical evidence of a nexus between the veteran's intercostal chest pain and his period of active duty service. 3. The veteran is diagnosed as having migraines and sinus headaches. There is no competent medical evidence of a nexus between the veteran's migraines and sinus headaches and his period of active duty service. 4. The veteran is diagnosed as having hiatus hernia without reflux as confirmed by X-ray study. There is no competent medical evidence of a nexus between the veteran's hiatus hernia and his period of active duty service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for aching joints, sore muscles, fatigue, chest pain, headaches, and stomach problems, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. §§ 1117, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.317 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based ionizing radiation exposure). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, 38 U.S.C.A. § 1117 provides for compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed 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. 38 U.S.C.A. § 1117 (West 1991 & Supp. 1999). Regulations clarify that a veteran of the Persian Gulf war must exhibit objective indications of a chronic disability resulting from an undiagnosed illness or combination of illnesses manifested by one or more signs or symptoms. 38 C.F.R. § 3.317(a)(1). "Objective indications of 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)(2). A disability is considered "chronic" if it has existed for 6 months or more or if the disability exhibits intermittent episodes of improvement and worsening over a 6-month period. 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 3.317(b). It is emphasized that the disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory test. 38 C.F.R. § 3.317(a)(1)(i) and (ii). Finally, the claimed chronic disability must have been manifest during active service in the Southwest Asia theater of operations or manifest to a compensable degree by December 31, 2001. 38 C.F.R. § 3.317(a)(1)(i) and (ii); 62 Fed. Reg. 23138, 23139 (1997) (interim rule amending 38 C.F.R. § 3.317(a)(1)(i)). Compensation is not payable if there is affirmative evidence that 1) an undiagnosed illness was not incurred during active military service, 2) an undiagnosed illness was caused by a supervening event or condition, or 3) the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A well grounded claim for compensation under 38 U.S.C. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness generally requires the submission of some evidence of: (1) active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) the manifestation of one or more signs or symptoms of undiagnosed illness; (3) objective indications of chronic disability during the relevant period of service or to a degree of disability of 10 percent or more within the specified presumptive period; and (4) a nexus between the chronic disability and the undiagnosed illness. VAOPGCPREC 4-99. VA cannot undertake to assist a veteran in developing facts pertinent to his claim until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). Initially, the Board finds that the provisions for allowing service connection for chronic disability due to an undiagnosed illness are not applicable here because each of the veteran's claimed disorders are attributable to a known diagnosis. First, a review of the February 1998 VA examination report reveals a diagnosis of fibromyalgia on the basis of fatigue, tenderness, and myalgia. Second, the medical evidence reveals a diagnosis of intercostal or musculoskeletal chest pain. Third, the evidence of record reveals a diagnosis of migraines and sinus headaches. Finally, the veteran is diagnosed as having hiatus hernia. Because each of the veteran's complaints is attributed to a known clinical diagnosis, service connection may not be had as due to an undiagnosed illness. 38 C.F.R. § 3.317(a)(1)(i) and (ii). Accordingly, the Board must consider the veteran's claims on a direct basis. The Board notes that the above-listed diagnoses satisfy the first requirement for a well grounded claim. Epps, 126 F.3d at 1468; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As to the second element, the veteran generally asserts that each of the complaints began during or as a result of service. To the extent that the assertion tends to show that the disorders were incurred in service, the Board accepts the veteran's assertion as true. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, the Board finds that the claims are not well grounded because there is no competent medical evidence of a nexus between any of the veteran's current disorders and his period of active military service. That is, there is simply no physician opinion or other competent medical evidence that establishes a relationship between the veteran's military service and his fibromyalgia, intercostal chest pain, migraine and sinus headaches, or hiatus hernia. Absent such evidence, the claim cannot be well grounded. Epps, 126 F.3d at 1468. A review of the medical evidence, specifically the February 1998 VA examination and to some extent the December 1994 Persian Gulf War examination, shows that the veteran related to the examiner this complaints began either during or after his service in Southwest Asia. However, such evidence is insufficient to establish a well grounded claim because it does not demonstrate that the examiner himself related the disorders to service. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board acknowledges that the veteran himself believes that the disorders and complaints at issue began in or as the result of his military service. In addition, in his September 1998 substantive appeal, the veteran contends that the diagnoses of fibromyalgia and intercostal pain are incorrect. However, the Board emphasizes that there is no evidence of record to show that the veteran is a trained medical professional. Therefore, although he is competent to relate and describe symptoms, he is not competent to offer an opinion on matters that require medical knowledge, such as diagnoses or determinations of etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Thus, the veteran's personal opinion as to the proper diagnosis for his claimed disorders or their etiology has no probative value. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for aching joints, sore muscles, fatigue, chest pain, headaches, and stomach problems. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for the disorders discussed above, he should submit competent medical evidence that in some way links the disorders to service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. ORDER Service connection for aching joints, sore muscles, fatigue, chest pain, headaches, and stomach problems, to include as due to an undiagnosed illness, is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals