Citation Nr: 0004907 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 94-48 056 ) DATE ) ) On appeal certified by the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for joint pain, to include as due to undiagnosed illness. 3. Entitlement to service connection for memory loss, to include as due to undiagnosed illness. 4. Entitlement to service connection for a stomach disorder, to include as due to undiagnosed illness. 5. Entitlement to service connection for sleeplessness, to include as due to undiagnosed illness. 6. Entitlement to service connection for sores and infections, to include as due to undiagnosed illness. 7. Entitlement to service connection for weakness in the arms and legs, to include as due to undiagnosed illness. 8. Entitlement to service connection for shortness of breath, to include as due to undiagnosed illness. 9. Entitlement to service connection for lumps, to include as due to undiagnosed illness. 10. Entitlement to service connection for heat intolerance, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The appellant had active service from September 1966 to March 1970, March 1976 to July 1979, and from January to August 1991 with service in the Persian Gulf. He also performed periods of additional service with reserve and national guard units. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. He filed a notice of disagreement later that same month, and the RO issued a statement of the case in November 1994. The veteran timely appealed these claims later in November 1994. The claim was later transferred to the Indianapolis, Indiana RO. The Board notes that the appellant had appealed the issue of entitlement to service connection for bilateral rotator cuff tendinitis. In December 1998, however, the RO granted service connection and assigned respective 20 percent ratings for each shoulder. Therefore, given that this issue has been granted it is no longer on appeal. 38 U.S.C.A. § 7104. On appeal it appears that the representative in September 1999 attempted to file a notice of disagreement (NOD) to the ratings assigned in December 1998. The Board notes that a notice of disagreement must be filed, "with the activity which entered the determination with which disagreement is being expressed." 38 U.S.C.A. § 7104 (West 1991). Hence, the NOD should have been filed with the RO, and not the Board. The representative's submission is, however, referred to the RO for all appropriate consideration, to include whether the NOD was filed on a timely basis. In January 2000, the veteran withdrew his request for a Travel Board hearing. FINDING OF FACT The claims of entitlement to service connection for fibromyalgia, joint pain, memory loss, a stomach disorder, sleeplessness, sores and infections, weakness in the arms and legs, shortness of breath, lumps, and heat intolerance are not supported by cognizable evidence demonstrating that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims of entitlement to service connection for fibromyalgia, joint pain, memory loss, a stomach disorder, sleeplessness, sores and infections, weakness in the arms and legs, shortness of breath, lumps, and heat intolerance are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to each of the appellant's claims the legal question to be answered initially is whether he has presented evidence of well-grounded claims; that is, claims that are plausible. If a claim is not well-grounded claim, the appeal must fail and there is no duty to assist with any further development. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that the veteran's claims are not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Additionally, service connection may be established for chronic disability resulting from an undiagnosed illness which became manifest either during active 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. 38 C.F.R. § 3.317(a)(1) (1999). Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. 38 C.F.R. § 3.317 (a)(2- 5). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In this case, the veteran's active duty service medical records show no indication of any diagnosis of, fibromyalgia, joint pain, memory loss, sores and infections, weakness in the arms and legs, shortness of breath, lumps, or heat intolerance, to include records maintained during his Gulf service. The service medical records do note the appellant's self-report of stomach trouble in May 1988. Physical examination disclosed at that time showed no abnormality, and no diagnosis was entered. Although a July 1991 report of medical history noted the appellant's statement that he had stomach and sleeping troubles, there was no clinical evidence of any disorder. A discharge examination report is not of record. Postservice, in a November 1992 report of medical history, which was part of a periodic examination for the reserves, the veteran denied a history of stomach or sleeping problems, and examination was negative for each of the claimed disorders. An April 1994 VA examiner opined that the veteran had symptoms which began after his Persian Gulf service. These symptoms consisted of abdominal bloating, muscle and joint pain, epigastric and sour eructation, and poor memory, the cause of which had not been determined. The examiner did not link the symptoms to service. With respect to stomach bloating, subsequent testing indicated that the veteran had gastroesophageal reflux disease (GERD), and an April 1994 x- ray study of his small bowel revealed a few short segments in the mid-abdomen that revealed narrowing with slight separation. This raised a question of granulomatous disease, such as Crohn's disease, or a mass that was separating the loops of the small bowel with secondary narrowing such as a lymphoma. In May 1994, a service examiner diagnosed a granulomatous disease of the small intestine. In November 1994, the veteran reported to reserve medical personnel a history of chronic joint pain, abdominal bloating, joint pain, sweats, and transient periods of short term memory loss. The appellant was noted to be being followed by VA. No diagnosis was entered. In January 1995, the veteran was hospitalized for a phase II Persian Gulf illness examination. Complaints of arthralgia, myalgia, heat intolerance, memory loss, sleep disturbance and fatigue were noted. The veteran was noted to have a prior diagnosis of GERD. While hospitalized, an examiner found the veteran to have insomnia and memory loss that was likely related to fatigue. A rheumatologic examination entered diagnoses of fibromyalgia along with diffuse tender points, chronic pain complaints and sleeping problems, all consistent with fibromyalgia. Finally, an infectious disease examination revealed no evidence of infectious disease acquired in the Gulf. The examiner opined that the veteran's significant sleep disturbance was possibly the ultimate etiology for decreased memory and concentration, along with some arthralgia. The diagnoses at discharge were possible fibromyalgia, GERD, and sleep disturbance. In October 1998, the appellant presented sworn testimony regarding each of the claimed issues. He also has submitted numerous lay statements concerning the nature, extent, and etiology of the claimed disabilities. The Board initially turns to the veteran's entitlement to service connection for the claimed disorders on a direct basis and notes that the service medical records do not reveal a diagnosis of fibromyalgia, chronic joint pain, memory loss, a stomach disorder, sleeplessness, sores, infections, lumps, extremity weakness, shortness of breath, and/or heat intolerance. Additionally, postservice the veteran has not been diagnosed with sores, infections, shortness of breath, and/or heat intolerance. Finally, while the veteran has been diagnosed postservice with fibromyalgia, chronic pain due to fibromyalgia, GERD, and sleeping problems due to fibromyalgia, there is no competent medical evidence linking any claimed disorder to the veteran's active duty service. Without competent evidence of a current disability which is linked by competent evidence to service, the Board must find that these claims are not well grounded, and they must be denied. With respect to the appellant's entitlement to benefits under the regulations governing disability due to an undiagnosed illness, the Board notes that the veteran's symptoms of chronic pain, and sleeping problems have both been established as being due to fibromyalgia. As these symptoms have been associated with a known illness they are not due to an undiagnosed illness. As such, the provisions of 38 C.F.R. § 3.317 are not for application. Additionally, because fibromyalgia and GERD are known clinical entities they cannot be symptoms of an undiagnosed illness. As such, the provisions of 38 C.F.R. § 3.317 are again not for application. Finally, with respect to the appellant's claims of entitlement to service connection for memory loss, sores, infections, lumps, extremity weakness, shortness of breath and heat intolerance, the Board notes that under 38 C.F.R. § 3.317, there must be objective indications of a chronic disability which include both "signs," in the medical sense of objective evidence perceptible to an examining physician, or other, non-medical indicators that are capable of independent verification. In this case, however, there is no competent medical evidence perceptible to an examining physician, and there is no other competent evidence providing independent verification that the appellant suffers from an undiagnosed illness manifested by chronic memory loss, sores, infections, lumps, extremity weakness, shortness of breath, and/or heat intolerance. Without such competent these claims must be denied as not well grounded. The benefits sought on appeal are therefore denied. In reaching these decisions the Board considered the veteran's testimony that he developed the claimed disorders as a result of service. The Board notes, however, that while he is certainly capable of providing the testimony offered in October 1998 before a hearing officer at the RO, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The same is true for the statements provided by the veteran's spouse, brother, service buddies, employer, and friends. Id. Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the service medical records do not show the veteran had any of the claimed disorders, and as the appellant has submitted no medical opinion or other competent evidence to support his claim that these disorders are in anyway related to his period of service, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded. 38 U.S.C.A. § 5107. Although the Board has disposed of the foregoing claims on a ground different from that of the RO, that is, whether the claims are well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by the Board's decision. In assuming that the claims were well grounded, the RO accorded the veteran greater consideration than his claims warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Finally, as the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disability. Robinette. ORDER Service connection for fibromyalgia, joint pain, memory loss, a stomach disorder, sleeplessness, sores and infections, weakness in the arms and legs, shortness of breath, lumps, and heat intolerance is denied. DEREK R. BROWN Member, Board of Veterans' Appeals