Citation Nr: 0003652 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-13 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for respiratory disability, to include as due to an undiagnosed illness. 2. Entitlement to service connection for back disability, to include as due to an undiagnosed illness. 3. Entitlement to service connection for joint and muscle disability, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active duty service from October 1982 to February 1992, including service in Southwest Asia from September 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 1998, and a statement of the case was issued in June 1998. A substantive appeal was received in August 1998. In his substantive appeal, the veteran requested a Board hearing in Washington, D.C. However, he failed to report for a hearing scheduled in June 1999. FINDINGS OF FACT 1. The veteran had active military service in the Southwest Asia theater of operations from September 1990 to March 1991. 2. The veteran's current respiratory symptoms have been attributed to asthma and bronchitis. 3. The veteran's current back symptoms have been attributed to lumbosacral strain. 4. There is no medical evidence of a nexus between the veteran's asthma, bronchitis and/or lumbosacral strain, and his active military service. 5. The claims file includes medical evidence showing that the veteran suffers from muscle and joint pain which has not been attributed to a known clinical diagnosis. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for respiratory disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for back disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran's claim of entitlement to service connection for joint and muscle disability due to an undiagnosed illness is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. Joint and muscle disability may be presumed to be incurred during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 1991); 38 C.F.R. § 3.317 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). 38 C.F.R. § 3.317(a) further provides that the VA shall pay compensation to a Persian Gulf veteran who "exhibits objective indications of chronic disability" (manifested by certain signs or symptoms), which, by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. Id.; see also 38 U.S.C.A. § 1117. Signs or symptoms which may be manifestations of undiagnosed illnesses include those involving muscle pain, joint pain and the respiratory system. 38 C.F.R. § 3.317(b). "Objective indications" include both 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). However, it should be noted at the outset that statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well- grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. I. Respiratory Disability and Back Disability With regard to the claim for respiratory infections, the veteran's service medical records show that he received treatment for an upper respiratory infection (URI) with secondary pleurisy in November 1982. He also received treatment between September and October of 1989, and received assessments of a "possible" URI and a "possible" viral syndrome. With regard to the claim for back pain, the veteran received treatment for back pain in October 1983, November 1988, and in February and November of 1990. The assessments were coccydynia, rule out muscle spasm, mild lumbar strain, and "low back pain, idiopathic, probably musculoskeletal," respectively. A chest X-ray report, dated in March 1988, notes mild scoliosis. Service medical records also include physical examination reports, dated in May 1983, March 1988 and December 1991, which show that the veteran's lungs and chest, upper and lower extremities, spine and musculoskeletal system and neurological system were clinically evaluated as normal. The March 1988 and December 1991 reports also show that his chest X-ray was within normal limits (a chest X-ray was not taken in May 1983). A report of medical history accompanying the December 1991 report shows that the veteran denied having swollen or painful joints, "chronic or frequent colds," asthma, shortness of breath, pain or pressure in his chest, cramps in his legs, "arthritis, rheumatism or bursitis," lameness, "painful or 'trick' shoulder or elbow," recurrent back pain, and 'trick' or locked knee. He did not otherwise self-report any relevant symptoms. A Southwest Asia Demobilization Redeployment Medical Evaluation report, dated in December 1991, shows that the veteran reported having a cough. An examiner related the veteran's complaints to seasonal pharyngitis. Medical records associated with the National Guard include an examination report, dated in July 1993, which shows that his lungs and chest, upper and lower extremities, his spine and musculoskeletal system, and his neurological system were clinically evaluated as normal. A medical prescreening form, dated in June 1993, shows that he denied back trouble, "any painful or 'trick' joints or loss of movement in any joint," and "impaired use of arms, legs, hands and feet." He stated that he had no difficulty standing for a long time, and he denied asthma and respiratory problems, as well as any "other medical problems or defects of any kind." A report of medical history accompanying the July 1993 report shows that the veteran stated that he was in good health, and that he denied having swollen or painful joints, "chronic or frequent colds," asthma, shortness of breath, pain or pressure in his chest, cramps in his legs, "arthritis, rheumatism or bursitis," lameness, "painful or 'trick' shoulder or elbow," recurrent back pain, and 'trick' or locked knee. He did not otherwise self-report any relevant symptoms. An "annual medical statement," dated in June 1995, shows that the veteran denied any current medical problems, and that he reported that he had had a bronchial infection. The claims file contains records from Family Medicine Associates (FMA), dated in 1996, which are difficult to read. A record dated in February 1996 appears to contain notations of complaints of left trapezius pain which radiated to the elbow of one week's duration, and hand impairment, which he associated with his work as a mail handler. There is a notation of radiculopathy, and a notation of "overuse," with a recommendation of a work restriction of working no more than eight hours a day for two weeks. The assessments noted left trapezius muscle strain. A record, dated in April 1996, shows complaints of a cold and flu. The assessments included URI. A record, dated in September 1996, shows treatment for complaints of fever, chills and body aches. The assessment was pharyngitis. A record, dated in November 1996, shows that the veteran complained of coughing and that he was counseled to quit smoking. The impression was bronchitis. A VA examination report, dated in July 1997, shows that on examination, his lungs were clear to auscultation and percussion. The diagnosis was deferred pending laboratory results. An addendum to the July 1997 examination report, dated in October 1997, shows that a chest X-ray did not reveal any pulmonary disease and that pulmonary function tests (PFT's) revealed expiratory flows consistent with small airway disease; the relevant diagnosis was "asthma (breathlessness). A VA PFT examination report lists a diagnosis was bronchial asthma. The examiner further noted, "The veteran's symptoms of dyspnea on exertion can be explained entirely by his asthma..." A VA examination report, dated in September 1997, contains diagnoses that include lumbosacral strain, recurrent. An accompanying X-ray report for the lumbar spine notes "fairly marked narrowing of the L5-S1 disc space" and partial sacralization of the fifth lumbar vertebra. A VA special infectious diseases examination report, dated in February 1998, is remarkable for the examiner's statement that the veteran's complaints of weakness and dyspnea on exertion were more likely related to his underlying pulmonary pathology. The veteran asserts that he has respiratory infections and back pain, as a result of his service, to include as due to undiagnosed illnesses. The claims file includes a lay statement from the veteran's brother, dated in July 1997, and two statements from another family member (possibly his mother), dated in May and July of 1997, respectively, who assert that the veteran has symptoms that include joint pain, and respiratory problems such as shortness of breath. The Board is unable to find that a chronic disability involving respiratory infections or back pain was shown during the veteran's service. The veteran was treated for URI's on two occasions, and for low back pain on three occasions, during his nine years and three months of service. These appear to have been acute conditions, as the last treatment for a respiratory symptoms was approximately three years prior to separation from service, and the last treatment for low back symptoms was approximately three years prior to separation from service. The veteran's separation examination report, dated in December 1991, shows an absence of clinical findings for the lungs and spine. Furthermore, although the veteran has been diagnosed with bronchitis, and asthma, the first evidence of either of these conditions is the assessment of bronchitis found in the FMA records dated in November 1996. This is approximately four years and nine months after separation from active duty. Similarly, the first post-service evidence of lumbar strain is dated in September 1997, and comes approximately five years and six months after separation from service. In sum, the claims file does not currently contain medical evidence showing a relationship between the veteran's asthma, bronchitis and/or lumbosacral strain and his service. Moreover, the record does not include any medical opinion linking the continuity of symptoms reported by the veteran to any current asthma, bronchitis or lumbosacral strain so as to well-ground his claims under Savage v. Gober, 10 Vet. App. 488 (1997). Accordingly, based on this evidence the Board finds that claims based on asthma, bronchitis and lumbosacral strain are not well grounded. To the extent that the veteran advances his respiratory and back claims based on the undiagnosed illness provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, his service records show that he served in South West Asia from September 1990 to March 1991. Pursuant to 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, service connection may be established for chronic disability resulting from undiagnosed illness which cannot be attributed to any know clinical diagnosis and which became manifest either during active service in the Southwest Asia theater or operations during Persian Gulf war, or to a degree of 10 percent or more not later than December 31, 2001. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(3). Further, it should be noted that signs and symptoms which may be manifestations of undiagnosed illness include respiratory signs or symptoms, and muscle and joint pain. 38 C.F.R. § 3.317(b)(2). It should also be emphasized that entitlement under these special provisions is only for disability which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). However, even under undiagnosed illness provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, the Board must conclude that the claims based on respiratory disability and back disability due to an undiagnosed illness are not well grounded. In this regard, as discussed above, the claims file contains VA medical examination reports which attribute the veteran's respiratory symptoms and back pain to specific disease processes which have been clinically diagnosed, i.e., asthma, bronchitis and lumbosacral strain. In other words, the pertinent signs and symptoms have been attributed to known clinical diagnoses. As such, the claims based on the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not well-grounded. See VAOPGCPREC 4-99 (May 3, 1999). II. Muscle and Joint Disability The claims file contains a VA neuromusculoskeletal examination report, dated in August 1997. The examiner stated that, "[The veteran] ... has a chronic and persistent condition resulting in significant limitation of activities including work, military service, activities of daily living and attempts at diagnosing this have not been successful. He, therefore, should be considered to have an undiagnosed condition that results in chronic and persistent symptoms with significant functional impairments. This condition is persistent and it is as likely as not to continue with the same symptoms for the foreseeable future." An addendum to a VA general medical examination report, dated in January 1998, contains diagnoses that include "undiagnosed disease manifested by multiple arthralgias, chronic." As it appears from the record that the veteran suffers from muscle and joint symptoms which at least one trained medical examiner has been unable to attribute to a known clinical diagnosis, the Board finds that the claim for muscle and joint disability due to an undiagnosed illness is well- grounded. 8 U.S.C.A. § 5107(a); VAOPGCPREC 4-99 (May 3, 1999). Moreover, there does not appear to be any medical evidence or opinion to refute the medical opinion that the veteran suffers from signs and symptoms related to the muscles and joints which cannot be attributed to a known clinical diagnosis. Under the circumstances, the Board is compelled to conclude that the requirements for a grant of service connection for muscle and joint disability under the provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 have been met. ORDER The veteran's claims of entitlement to service connection for respiratory disability and for back disability, including on the basis as due to undiagnosed illness, are not well- grounded. To this extent, the appeal is denied. Entitlement to service connection for muscle and joint disability as due to undiagnosed illness is warranted. To this extent, the appeal is granted. ALAN S. PEEVY Member, Board of Veterans' Appeals