Citation Nr: 0002377 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 94-22 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUES 1. Entitlement to service connection for headaches, including as manifestations of an undiagnosed illness. 2. Entitlement to service connection for memory loss, including as a manifestation of an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from June 1987 to June 1991. This included service in the Southwest Asia Theater of Operations during the Persian Gulf War. In addition to the issues listed on the front page of this decision, the veteran perfected an appeal as to a claim for service connection for joint and muscle ache and pains. Service connection was granted for that disability in a September 1995 rating decision. That decision represents a full grant of the benefit sought. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997). This appeal arises from a May 1993 rating decision of the Salt Lake City, Utah, Department of Veterans Affairs (VA) regional office (RO), which in part denied entitlement to service connection headaches secondary to medications, and short term memory loss as secondary to medication use. The RO issued a statement of the case as to these issues in June 1993. The Board has accepted communications received from a United States Senator's office in May 1994, as a substantive appeal as to those issues. In September 1994, the Louisville, Kentucky, RO issued a rating decision and supplemental statement of the case in which it included the issue of entitlement to service connection for depression. In a rating decision dated in February 1995, the Phoenix, Arizona, RO denied entitlement to service connection for headaches, muscle twitches and short term memory loss due to an undiagnosed illness under the provisions of 38 U.S.C.A. § 1117 (West Supp. 1999); 38 C.F.R. § 3.317 (1999). The veteran submitted a notice of disagreement with the denial of service connection for muscle twitches, which was received in July 1996. It does not appear that the veteran has submitted a notice of disagreement with the denial of service connection for depression. The RO has certified these issues as being on appeal, and the veteran's representative has submitted a statement to the Board in which the issue of service connection for muscle twitches, but not depression, was listed as being on appeal. These issues will be discussed more fully in the Remand section of this decision. Jurisdiction of the claims folder has been transferred to the Boise, Idaho RO FINDINGS OF FACT 1. There is no competent evidence of "objective indications of chronic disability" resulting from headaches. 2. There is no competent evidence of a nexus between current headaches and medication taken in service or any other incident of service. 3. The veteran had the requisite service in the Southwest Asia theater of operations, and there is competent evidence of chronic memory loss attributable to undiagnosed illness. CONCLUSIONS OF LAW 1. The claim for service connection for headaches is not well grounded. 38 U.S.C.A. §§ 1117, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999). 2. The claim for service connection for memory loss is well grounded. 38 U.S.C.A. §§ 1117, 5107; 38 C.F.R. § 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the service medical records reflects that on one occasion in May 1991, the veteran complained of headaches. The headaches were associated with an upper respiratory infection. The available service medical records are without reference to muscle twitches, memory loss, or depression. The veteran was accorded a general medical examination by VA in September 1992. It was indicated there were no medical records for evaluation with regard to his problems while in service, particularly his duty in Saudi Arabia. The veteran referred to no medical problems until February 1992 when he began to experience almost daily headaches. He also believed that at that time he developed a short-term memory loss. He had not sought any medical treatment. He reported that while he was in Saudi Arabia, he was given botulism shots around November 1990. He also took tablets relative to the possibility of use for protection against nerve agents of chemical warfare. Apparently, he showed no symptoms or signs of any reaction to the tablets. Physical examination was unremarkable. The diagnosis was "subjective complaints with regard to "pain in my arms and legs, daily headaches, and short-term memory loss" without findings of objective abnormalities on examination." The veteran was accorded a psychiatric examination by VA in June 1994. He described a number of somatic complaints that began about 4 or 5 months after his return from Saudi Arabia. These consisted of feeling no specific pain complaints which involved the extremities and headache-type symptoms. He believed he might deal with health problems as a result of taking a synthetic botulism vaccine that was administered on a voluntary basis to some of the troops in the hope that it would safeguard against certain biologic agents that the Iraqis were rumored to have. Physical assessment to that time had not revealed any specific medical basis for his pain complaints. Findings were recorded and it was the examiner's impression that the history and clinical presentation were consistent with a diagnosis of mild major depression which appeared to have been precipitated by stressors associated with the Gulf War. With respect to the submitted symptoms the veteran was reporting, it did not appear to the examiner that adequate information was available to determine whether the etiology of the complaints was medical or psychosomatic in nature. The Axis I diagnosis was major depression, single episode, mild. The veteran was again examined by VA in November 1994. He was evaluated for his complaint of headaches which he stated he had had for about one year. He did not recognize any trigger. He had no visual prodrome. He described the headaches as a deep ache that was bilateral on the top of the head. He also complained of muscle twitches which he likened to a twitch when he occasionally fell asleep. These typically happened at the end of the day when he was sitting in a chair in front of the television. Neurologic examination was essentially unremarkable. Magnetic resonance imaging scan of the head was normal. It was noted that the veteran was without headaches throughout hospital course. It is believed that the headaches were likely tension in nature. The veteran indicated the pain was relieved significantly by Motrin and Tylenol, so medications were prescribed at that time. Magnetic resonance imaging of the head to rule out ischemia or masses was completely normal. As for the twitches it was believed that these were likely to be myoclonus that the veteran had while falling asleep in front of the television. The veteran was accorded a Persian Gulf War review evaluation and an authorized examination in January 1999. It was reported that he served in the Persian Gulf War from August 15, 1990, to March 30, 1991. He was currently working for the Railroad and did not miss any work due to the Persian Gulf War, but had to change from his duty of a car man to office work because of his multiple complaints which included multiple joint arthralgia, headaches, memory loss, and insomnia. The veteran complained of difficulty with his memory with simple math and recording recent events. He indicated he had to write down various tasks and assignments in order to recall them. His short-term memory loss was evaluated and he was reportedly found to have difficulty with simple math and recall of recent events. He did not have any difficulty recalling events from his long-term memory. Examination findings included equal and round pupils, with the eyes reactive to light and accommodation. Neurologic evaluation was within normal limits. The impressions included minor memory loss and insomnia. The veteran stated his medical status had been essentially unchanged since an evaluation several years previously. The veteran was accorded a rating examination by a VA psychologist in February 1999. The evaluation was with regard to complaints of memory problems. The examination included review of the veteran's claims file, clinical interview, and psychometric testing. The veteran gave no history of treatment for psychiatric problems. By his own report he had problems with irritability and depressed mood after discharge from the military. He indicated that symptoms which he reported at the time of psychiatric examination by VA in June 1994 had resolved. However, he continued to experience multiple somatic symptoms, primarily pain complaints that involved the extremities, and headaches. He also was concerned about a subjective decline in his ability to remember things. He was constantly worried that he would forget or miss something critical in his job and this caused him anxiety and feeling pressured. He denied that he had made any significant mistakes at work. He believed this was due to the fact that he wrote everything down. He expressed concern that his somatic symptoms and his reported memory loss, as well as health problems in his children, were a result of his having been exposed to toxic substances while serving in the Persian Gulf. Memory functions were assessed on testing and he scored within the average range on all subtexts. Attention and concentration were at a slightly above average level, as was immediate recall for information presented through both auditory and visual modalities. While retrieval of information after a 20- to 25-minute delay was somewhat depressed relative to immediate recall, it was still well within normal limits. The impression was that while the veteran reported subjective perception of decreased memory abilities since his service in the Persian Gulf, current results on testing of memory functions indicated that he appeared to be functioning at a level expected for his age and background. In sum, there was no evidence of significant problems in that area. The Axis I diagnosis remained major depression, single episode, in remission. Law and Regulations Service connection is warranted with regard to a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharged, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Under the provisions of 38 U.S.C.A. § 1117 (West Supp. 1999): [T]he Secretary of VA may pay compensation under this subchapter to any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses) that (1) became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War; or (2) became manifest to a degree of 10 percent or more within the presumptive period prescribed under subsection (b). (b) The Secretary shall prescribe by regulation the period of time following service in the Southwest Asia Theater of Operations during the Persian Gulf War that the Secretary determines is appropriate for presumption of service connection for purposes of this section. The Secretary's determination of such a period of time shall be made following a review of any available credible medical or scientific evidence and the historical treatment afforded disabilities for which manifestation periods have been established and shall take into account other pertinent circumstances regarding the experiences of veterans of the Persian Gulf War. (c)(1) The Secretary shall prescribe regulations to carry out this section. (2) Those regulations shall include the following: (A) A description of the period and geographical area or areas of military service in connection with which compensation under this section may be paid. (B) A description of the illnesses for which compensation under this section may be paid. (C) A description of any relevant medical characteristic (such as a latency period) associated with each such illness. (e) A disability for which compensation under this subchapter is payable shall be considered to be service connected for purposes of all other laws of the United States. (f) For purposes of this section, the term "Persian Gulf veteran" means a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War. VA has adopted the provisions of 38 C.F.R. § 3.317 (1999) to implement 38 U.S.C.A. § 1117. The regulation provides as follows: Except as provided in paragraph (c) of this section, VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of this section, provided that such disability: (i) Became manifest either 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, 2001; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2) For purposes of this section, "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. (3) For purposes of this section, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six- month period will be considered chronic. The six-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. (4) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria for Part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. (5) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. (b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) Fatigue, (2) signs or symptoms involving skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, (13) menstrual disorders. Compensation shall not be paid under this section: (1) If there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia Theater of Operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. For purposes of this section: (1) The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War. (2) The Southwest Asia Theater of Operation includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabia Sea, the Red Sea, and the air space above these locations. 38 C.F.R. § 3.317. The VA General Counsel has interpreted the provisions of 38 U.S.C.A. § 1117, and 38 C.F.R. § 3.317, as meaning that service connection cannot be granted for a disability that is attributable to a diagnosed illness, including a diagnosis that can be characterized as "poorly defined." VAOPGCPREC 8- 98 (1998). The Board is bound by the General Counsel's interpretation. 38 U.S.C.A. § 7104(c) (West 1991). The threshold question that must be resolved with regard to the claims is whether the veteran had presented evidence that they are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or in some cases lay evidence of the incurrence or aggravation or disease or injury in service, and medical evidence of a nexus between the inservice disease or injury and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498 (1995). A layperson is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997); see Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) (citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995), for the proposition that lay evidence linking a fall to a service-connected weakened leg sufficed on that point as long as there was "medical evidence connecting a currently diagnosed back disability to the fall"); Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994) (lay testimony that one condition was caused by a service-connected condition was insufficient to well ground a claim). The necessary elements of a claim for benefits under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may be identified as follows: (1) proof of active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) proof of one or more signs or symptoms of undiagnosed illness; (3) proof of objective indications of chronic disability manifest during service or to a degree of disability of 10 percent or more during the specified presumptive period; and (4) proof that the chronic disability is the result of the undiagnosed illness. It is, of course, possible to arrive at different statements of the necessary elements of the claim, consisting of more than four elements (e.g., by treating the requirements of chronicity or incapability of diagnosis as separate elements). In order for a claim for service connection under those laws and regulations to be well grounded, there must be competent evidence in support of each element of the claim. VAOPGCPREC 4-99. Analysis Headaches In order for the veteran's claim for service connection due to undiagnosed illness to be well grounded there must be competent evidence of "objective indications of chronic disability." This requirement must be satisfied by more than the veteran's own statements. VAOPGCPREC 4-99. In this case, the veteran's subjective complaints of headaches have been noted on a number of occasions. Objective evidence of headaches has not been reported on any examination, during VA hospitalization, or on any other occasion. During the period of VA hospitalization it was noted that the veteran had a history of headaches, but that there were no indications of headache during the period of hospitalization. In the absence of competent evidence of competent evidence of "objective indications of chronic disability," the claim for service connection for headaches as an undiagnosed illness is not well grounded and must be denied. The veteran's service medical records reflect that he was seen on one occasion for a complaint of headaches. This was found to be associated with an upper respiratory infection he was experiencing at the time. There were no subsequent references to headaches in service. The post service medical evidence reflects that there has been no competent evidence linking a current headache disorder to the headaches reported in service. The veteran has also contended that he has a headache disorder secondary to medications taken during service. Again, there is no competent evidence linking a current headache disorder to medication use in service. See Grottveit v. Brown, 5 Vet. App. 91 (1993). Thus, the claim for service connection for headaches on a basis other than as attributable to an undiagnosed illness is also not well grounded. As was noted above, where a claim is not well grounded, VA has no further duty to assist the veteran with the development of that claim. The Board has noted the contentions of the veteran's representative that examinations have been inadequate, and that he should be afforded additional examinations. However, since his claim is not well grounded, the Board has no further duty to assist the veteran with the development of his claim. Service Connection for Memory Loss. The veteran has satisfied all four of the elements necessary for a well-grounded claim for service connection for memory based on an undiagnosed illness. He had the requisite service in the Southwest Asia theater of operations. Findings on the January 1999, Persian Gulf Review Evaluation, satisfy the remaining three elements of a well-grounded claim. The veteran was found to have short-term memory loss objectively demonstrated by difficulty with simple math and in recalling recent events, and the reported impression of "minor memory loss" without attribution a diagnosed illness. In view of the finding that the claim is well grounded, VA has a duty to assist the veteran with the development of his claim. ORDER Service connection for headaches is denied. The claim for service connection for memory loss is well grounded. REMAND It does not appear that the veteran has submitted timely notices of disagreement or substantive appeals with regard to his claims for service connection for muscle twitches and depression. However, it could be prejudicial to the veteran, for the Board to sua sponte decide these matters. With regard to the claim for service connection for memory loss, the Board has noted that one examiner reported that the veteran had memory loss on testing. However, on psychiatric examination, the same day, it was reported that the veteran had no appreciable memory loss on testing. In view of this apparent contradiction, and in view of the contentions of the veteran, and his representative, the Board finds that further development is necessary. 1. The RO should request that the veteran furnish information as to any treatment he has received since service for memory loss. The RO should then take all necessary steps to obtain those records not already part of the claims folder, and associate them with that folder. 2. The RO should then afford the veteran appropriate examinations to determine whether he currently has memory loss. The examiners should review the claims folder prior to completing the examination report. All indicated testing should be completed. The examiner should express an opinion as to whether the memory loss is attributable to a diagnosed illness. 3. The RO should determine whether the veteran has submitted timely notices of disagreement and substantive appeals as to the issues of service connection for muscle twitches and depression. If any decision is adverse to the veteran, he should be informed of the steps necessary to perfect an appeal. 4. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible). If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that the examination requested in this remand is necessary to adjudicate his claims, and that a failure without good cause to report for scheduled examinations could result in the denial of his claims. 38 C.F.R. § 3.655 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals