Citation Nr: 0003642 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-00 246A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hair loss as due to an undiagnosed illness. 2. Entitlement to service connection for tinnitus as due to an undiagnosed illness. 3. Entitlement to service connection for left eye twitching as due to an undiagnosed illness. 4. Entitlement to service connection for fatigue as due to an undiagnosed illness. 5. Entitlement to service connection for sinus problems as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from February 1991 to April 1991 including active service in Southwest Asia and has additional service in the U.S. Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. That rating decision denied entitlement service connection for hair loss, tinnitus, left eye twitching, fatigue, and sinus problems as due to an undiagnosed illness. The veteran submitted a timely substantive appeal in January 1998. At a personal hearing conducted in January 1998, the veteran withdrew a request for a hearing before the Board. FINDINGS OF FACT 1. The medical evidence establishes that the signs or symptoms of hair loss have resolved. 2. The medical evidence establishes that the veteran's diagnosed tinnitus is attributable to temporomandibular joint disease. 3. The veteran's claims of entitlement to service connection for left eye twitching, fatigue, and sinus problems, are accompanied by sufficient evidence to establish well-grounded claims under the standard applicable to claims for service connection of manifestations of undiagnosed illness. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for hair loss as due to an undiagnosed illness. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for establishing entitlement to service connection for tinnitus as due to an undiagnosed illness have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.317 (1999). 3. The veteran's claims of entitlement to service connection for left eye twitching, fatigue, and sinus problems are well grounded. 38 U.S.C.A. §§ 1117, 5107(a) (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that she incurred symptoms including hair loss, tinnitus, left eye twitching, fatigue, and sinus problems, as a result of her Persian Gulf service. She claims that each of these disorders is due to an undiagnosed illness resulting from her period of service in the Southwest Asia theater of operations during the Persian Gulf War. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. See 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. Id. The threshold question which must be answered in this case, however, is whether the veteran has presented well-grounded claims for service connection. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that each claim is well grounded. See 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). When a veteran has presented a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a), VA has a duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107(a). A veteran must generally satisfy three elements in order to establish a well-grounded claim for service connection. First, there must be competent evidence of a current disability. Second, there must be evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. Lastly, there must be evidence of a nexus or relationship between the in-service injury or disease and the current disorder, as shown through medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (1997). 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, 498 (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." Id. In addition, statutes and regulations provide additional means for Persian Gulf veterans to establish a well-grounded claim for service connection for a disability. See 38 U.S.C.A. § 1117 (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999). See also VAOPGCPREC 4-99 (May 3, 1999) (regarding the requirements for a well-grounded claim for undiagnosed illnesses associated with the Persian Gulf War.) The veteran's service records document that she had active service in Southwest Asia Theater of operations during the Persian Gulf War. Thus, the veteran is a Persian Gulf veteran for purposes of awarding VA disability compensation. Id. Compensation may be paid 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, provided that such disability was manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War or manifest to a degree of 10 percent or more prior to December 21, 2001, and that it cannot, by history, physical examination, or laboratory tests, be attributed to any known clinical diagnosis. See 38 C.F.R. § 3.317(a)(1) (1999). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period should be considered "chronic" for purposes of adjudication. Id. Objective indications of a chronic disability include "signs" in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(2). VA has stated that non-medical indicators of an illness may include evidence of time lost from work, evidence the veteran has sought medical treatment for his symptoms, and "[l]ay statements from individuals who establish that they are able from personal experience to make their observations or statements." See Compensation for Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6663 (1995). The necessary elements of a well-grounded claim for benefits under 38 U.S.C.A. § 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. VAOPGCPREC 4-99 at 6. Evidence of a nexus between the chronic disability and the undiagnosed illness is an essential element of a well- grounded claim under section 1117. As a practical matter, an "undiagnosed illness" is identified and defined by its "signs or symptoms." 38 C.F.R. § 3.317(b). Accordingly, the fourth element may be satisfied by evidence of a nexus between the chronic disability and the signs or symptoms of the undiagnosed illness. Thus, for example, if a veteran's undiagnosed illness is manifested by respiratory signs or symptoms, the fourth element may be satisfied by evidence of a nexus between such respiratory signs or symptoms and the veteran's chronic disability. VAOPGCPREC 4-99 at 12. Evidence that an examining or treating physician failed to attribute the claimant's disability to any known diagnosis may be considered probative of whether the illness is capable of diagnosis, even though the physician may not have expressly indicated that the illness is incapable of diagnosis. VAOPGCPREC 4-99 at 15. For example, a physician who is unable to conclusively attribute the veteran's illness to a known diagnosis may simply refer to possible diagnoses of the illness. Id. at 14. Factual background No service medical records have been located. The veteran's certificate of release or discharge from active service reflects that she was separated on a temporary record. The veteran reported that she was not treated for any medical problem while overseas, and does not know if any service medical records were created. Post-service medical records include a report of examination completed in November 1993. No abnormalities were noted on physical examination. At that time, the veteran reported tinnitus and loss of a hair on the occiput. On Persian Gulf war examination conducted in January 1994, the veteran complained of baldness and ringing in the ears. The tympanic membranes retracted bilaterally and there was significant rhinorrhea. Dermatology evaluation in January 1995 revealed that the veteran complained of bald spots the size of a quarter on her scalp that would come and go for the past three years. The veteran also stated that when the hair grew back in those spots it was a lighter color than her normal color hair. No "spots" were appreciable on examination. No alopecia was found. January 1995 VA audiology examination revealed essentially normal hearing bilaterally, with excellent speech recognition scores. However, tomograms were abnormal bilaterally, flat with no peak, and reflexes were absent or were present at elevated levels. Further medical diagnostic evaluation was recommended. After evaluation, it was determined that the veteran had mild tympanosclerosis, a right lateral crossbite, and TMJ (temporomandibular joint disease). The examiner noted in particular that the veteran's tinnitus was present in the daytime only. On VA examination conducted in April 1995, there was no objective evidence of bald patches or thin hair. The examiner assigned a diagnosis of "complaints of baldness and thin hair without current manifestations of pathology." The veteran has submitted lay statements indicating that she veteran had no hair loss or tinnitus prior to her 1991 Gulf War service. The veteran's husband stated that she never complained about tinnitus prior to her 1991 period of active service. He first noticed that the veteran had a bald spot in December 1992. He stated that the hair loss problems were worst from 1992 to 1995, and stated that the veteran does not have bald spots now, but more hair than normal comes out in some places. The veteran submitted a statement from a fellow former servicemember, Clarence C. Rice, who stated that, during service, she had a neat appearance, and it was unusual to see her with thinning hair. The veteran's brother also submitted a statement indicating that he had noticed hair loss. At a personal hearing conducted in January 1998, the veteran testified that she noticed bald spots, patches of hair loss, in 1993. She further testified that, although she no longer had bald patches, she still had areas where the hair was very fine or brittle and would break off after it got to a certain length. She stated that ringing in her ears became more prominent in 1992 or 1993, and that the ringing would come and go, occurring approximately every two to three weeks. Analysis 1. Claim for service connection for hair loss as an undiagnosed illness The clinical records dated in March 1993 reflect that the veteran complained of hair loss, and a "couple" areas of missing hair were found on examination. Alopecia was diagnosed. However, since that time, all medical examinations have been negative for objective findings of hair loss, "spots" of color changes, or other abnormality of the hair. The Board notes that the veteran's husband has stated she continues to have "more than normal" hair loss in spots, although there are no longer spots of complete baldness. The veteran's husband also states that she is not currently seeking medical treatment for the problem. Although there was actual medical identification of hair loss at one time, there is currently no objective medical finding that the veteran currently has hair loss or residuals thereof. See 38 C.F.R. § 3.317(a)(2). In particular, the Board has considered the lay statements from the veteran, her husband, and a former fellow servicemember, who have each stated that the veteran continues to have residuals of hair loss, including thin or brittle, broken-off hair. However, these statements cannot be accepted as "nonmedical indicators that are capable of independent verification" as the evidence of record clearly reflects that, when independent verification was sought, all examinations after March 1993 were negative for findings of hair loss, pathology, or medical verification. Additionally, the Board notes that both the veteran and her husband have stated that her current hair loss is manifested only by episodes of more than usual hair loss not resulting in bald patches. Since normal hair loss is variable from person to person, it does not appear to the Board that the veteran's testimony or her husband's statements provide evidence of current indicators which are capable of independent verification, but rather, are subjective in nature. The statement provided by Clarence Rice, a fellow former servicemember, that the veteran currently has thinning of the hair, is too vague to serve as an objective indication that there is a chronic disease manifested by hair loss, and does not specifically state when his observation that the veteran had thinning hair was made. Even if the lay evidence were to be accepted as providing objective indicators of disability capable of verification, the Board finds that the evidence simply does not show that the veteran's hair loss, which now is manifested by episodes of "more than usual" hair loss preceded by tingling of the scalp, has become manifest to a degree of 10 percent or more under applicable schedular criteria. Therefore, as the veteran has failed to prove this essential element under 38 C.F.R. § 3.317, the Board must find that the claim for service connection is well grounded. VAOPGCPREC 4-99, 6 (1999). The Board notes that, even where the presumption of service connection does not apply to provide a favorable determination, service connection may be established with proof of actual direct service connection. See 38 U.S.C.A. §§ 1113(b), 1116. However, the Board emphasizes that no medical evidence or opinion has been submitted which demonstrates or suggests a link, or nexus, between a current disability manifested by complaints of hair loss and the veteran's 1991 active service. As a result, the claim for service connection on a direct basis for hair loss is not well grounded, and must be denied. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The duty to assist mandated by 38 U.S.C.A. § 5107(a) attaches only to well-grounded claims. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1998). No further factual development is required. In particular, the Board notes that, as all objective, verifiable symptoms of hair loss have resolved, remand of the claim for further attempts to obtain service medical records would be fruitless. The veteran has been advised that, even considering the presumption of service connection for undiagnosed illness applicable to Persian Gulf veterans who served in the Southwest Asia theater of operations, she has not established a well-grounded claim. The veteran has not identified any additional evidence which might service to well ground her claim. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The claim must be denied as not well grounded. 2. Claim for service connection for tinnitus as an undiagnosed illness The veteran contends that, since she developed tinnitus after her Persian Gulf service, the tinnitus is related to that service. However, the medical evidence of record reflects that the veteran's tinnitus is "most likely" secondary to TMJ dysfunction. The examiner explained that the basis for this conclusion, that the veteran had only daytime tinnitus, was consistent with the veteran's pattern of use of the TMJ joint. Tinnitus is not among the signs or symptoms which may be manifestations of an undiagnosed illness, as defined in 38 C.F.R. § 3.317. It appears to the Board that tinnitus is a diagnosis, and thus cannot be considered an undiagnosed illness. Further, to the extent that it arguably is a sign or symptoms of another disorder, the Board notes that because the medical evidence establishes that the veteran's tinnitus is attributable to TMJ syndrome, a known clinical diagnosis, a presumption of service connection for undiagnosed illness, under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a)(1), is not for application. However, the foregoing does not rule out the potential application of other grounds for a grant of service connection. See 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309; Combee, supra. The Board has therefore considered whether there is any medical evidence or opinion which establishes or suggests that there is any link, or nexus, between the veteran's service and current findings of tinnitus, or of TMJ disease. There is no evidence suggesting that such a claim is plausible. Therefore, even considering other potentially-applicable legal bases, a claim of direct service connection for tinnitus, or for a disability manifested by tinnitus is not well-grounded, and must be denied. 3. Claims for service connection for left eye twitching, fatigue, and sinus problems as undiagnosed illnesses The veteran claims service connection for left eye twitching, fatigue, and sinus problems. She attributes these problems to an undiagnosed illness that resulted from her service in the Persian Gulf during the Persian Gulf War, including allergies resulting from that war. The veteran has provided lay statements from her husband and other reflecting that she currently has these problems, but did not manifest these problems, other than occasional sinus stuffiness, prior to her Persian Gulf service. On VA examination conducted in April 1995, the examiner concluded that the veteran had "chronic sinus problems," based on the veteran's complaints of headache, ear pain, and pressure, with nasal stuffiness and congestion. However, the examiner did not provide an opinion as to the etiology or onset of the "sinus problems." The examiner also concluded that the veteran had a muscle twitch, left eye, "probably stress related," and had complaints of fatigue. Medical evidence subsequent to the April 1995 VA examination reflects that the veteran's "sinus problem" has not been more specifically diagnosed. The subsequent medical evidence reflects that additional causes for the veteran's left eye twitching, if related to fatigue, have been considered. The veteran has sought further evaluation of her fatigue, and several possible diagnoses, including narcolepsy, sleep apnea, chronic fatigue with no clear etiology, and dysthymia, have been suggested. The veteran testified, at her January 1998 personal hearing, that she was still undergoing evaluation for fatigue, and expected to undergo further diagnostic testing in April 1998. The evidence of record reflects that the veteran's fatigue has not been attributed to a known clinical diagnosis. The veteran has thus established well-grounded claims for service connection for left eye twitching and for fatigue under 38 U.S.C.A. § 1117. The Board finds that the veteran has presented evidence that she has objective clinical indicators of illness which have not been attributed to any specific medical diagnosis. The veteran has presented evidence that her left eye muscle twitch and ongoing sinus problems of undiagnosed type result in chronic disability. While medical evidence is ordinarily required to establish a nexus between an illness or symptoms and a current disability, the Board finds, consistent with the guidance in VAOPGCPREC 4-99, that this is a "circumstance[] where the relationship between symptoms and a current disability is capable of proof by lay evidence alone," since the medical evidence reflects various diagnostic possibilities but not clear medical diagnoses. VAOPGCPREC 4-99 at 12. The veteran's claims for service connection for left eye twitching, fatigue, and sinus problems are thus plausible, or well-grounded, within the meaning of 38 U.S.C.A. §§ 1117 and 5107(a), but further factual development is required before the merits of each of the claims is reviewed. These claims are referred to the RO for further development, as discussed in the REMAND portion of this decision. ORDER Service connection for hair loss, to include as due to an undiagnosed illness, is denied. Service connection for tinnitus as due to an undiagnosed illness is denied. The claim of entitlement to service connection for left eye twitching as due to an undiagnosed illness is well-grounded, and, to that extent only, the appeal is granted. The claim of entitlement to service connection for fatigue as due to an undiagnosed illness is well-grounded, and, to that extent only, the appeal is granted. The claim of entitlement to service connection for sinus problems as due to an undiagnosed illness is well-grounded, and, to that extent only, the appeal is granted. REMAND Further factual development, including medical examination, if needed, and medical opinion, is required, so that it may be determined whether the veteran's fatigue constitutes a diagnosed disorder or rather, is a disorder which cannot be diagnosed. As the medical evidence does not clearly indicate whether the veteran's twitching of the left eye is or is not related to fatigue, further development of the etiology of that disorder must also be conducted. Similarly, further development of medical evidence to identify whether the veteran's "sinus problems" are manifestations of a diagnosed illness or are of an undiagnosed etiology is required. In this regard, the Board again notes that no service medical records from the veteran's first period of service or from her Persian Gulf service have been located. Further attempts to locate the service medical records are required. Accordingly, this case is REMANDED for the following actions: 1. All pertinent VA medical records not already in the claims file, including records from December 1997 through the present, should be made of record. The veteran should be asked to identify any non-VA providers, including by address and by date of treatment, who have treated her for fatigue, muscle twitching, or sinus problems. Identified records should be sought, and associated with the claims file. 2. The RO should make further attempts to locate the veteran's service medical records, including through contact with her reserve unit. The veteran should be asked to specifically identify the reserve unit she currently serves with, or last served with. If no records are located by the reserve unit the veteran most recently served with, the veteran should be asked to identify each reserve unit she served with after her Persian Gulf service. Each reserve unit should be contacted to determine whether records for the veteran are available. 3. After all available clinical records have been obtained, medical examination(s), including examination(s) by psychiatry, internal medicine, orthopedic, or neurologic specialists, should be sought to resolve the conflicting medical diagnoses and to provide an opinion as to whether the veteran's fatigue and/or eye twitching is/are attributable to a diagnosed illness or remain undiagnosed have been resolved. The examiner(s) should express an opinion as to whether the veteran's fatigue is due to a diagnosed disorder or an undiagnosed disorder. The examiner(s) should also express an opinion as to the etiology of the veteran's eye twitching. The examiner should indicate whether it is at least as likely as not any of the disorders is due to the veteran's military service. The claims folder should be made available to the examiner(s) for review. 4. The veteran should be afforded special otorhinolaryngology examination. The examiner should determine whether the veteran has a sinus problem which may be attributed to a specific medical diagnosis or whether the etiology of the veteran's current sinus manifestations is undiagnosed. The examiner should also express an opinion as to the onset of any diagnosed sinus problem, including whether such diagnosed sinus problem was manifested during or aggravated by the veteran's miliary service and specifically her Persian Gulf service. The claims folder, including any service medical records obtained during the additional development specified above, should be made available to the examiner(s) for review. 5. Following completion of these actions, the RO should readjudicate the veteran's claim. If the decision remains adverse to the veteran, she and her representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until she receives further notice. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Member, Board of Veterans' Appeals