Citation Nr: 0002616 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-17 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for multiple joint pain, to include as due to undiagnosed illness. 2. Entitlement to an effective date prior to October 24, 1996, for a grant of service connection for gastrointestinal, pulmonary, and psychiatric disorders. REPRESENTATION Appellant represented by: Non Commissioned Officers Association of the U.S.A. ATTORNEY FOR THE BOARD Robert W. Legg, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 1998 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The veteran had active service from November 1974 to November 1994. FINDINGS OF FACT 1. The veteran served in the Southwest Asia Theater during the Persian Gulf War. 2. There is no objective evidence perceptible to an examining physician which tends to indicate that the veteran currently suffers from multiple joint pain. 3. An October 1995 rating decision denied service connection for gastrointestinal, pulmonary, and psychiatric disorders. 4. The veteran was notified of the October 1995 rating decision and of his appellate rights in correspondence dated October 11, 1995, but did not appeal within one year of the date he was notified. 4. On October 24, 1996, the RO received an application to reopen the previously denied claims for service connection for gastrointestinal, pulmonary, and psychiatric disorders. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); VAOPGCPREC 4-99 (issued May 3, 1999). 2. The requirements for an effective date for service connection for gastrointestinal, pulmonary, and psychiatric disorders prior to October 24, 1996 have not met. 38 U.S.C.A. §§ 5107, 5110(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 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(a) (1999). 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. See 38 C.F.R. § 3.303(d). Statutes and regulations provide additional means for Persian Gulf veterans to qualify for service connection for a disability. See 38 U.S.C.A. § 1117 (West 1991 & Supp. 1998); 38 C.F.R. § 3.317 (1999). The veteran's service records document that he had active service in Southwest Asia from January 1990 to May 1991. Hence, the veteran is a Persian Gulf veteran for purposes of awarding VA disability compensation. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d). Under 38 C.F.R. § 3.317(a)(1), 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 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. 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. Some of the signs and symptoms amenable to service connection include muscle and joint pain. See 38 C.F.R. § 3.317. "Objective indications" include both 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). In this regard, 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). To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. See 38 C.F.R. § 3.317, as amended by 62 Fed. Reg. 23, 139 (1997). Compensation shall not be paid under this section: 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 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 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. See 38 C.F.R. § 3.317(c). However, 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 the 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), the VA has a duty to assist the veteran in the development of his claim. See 38 U.S.C.A. § 5107(a). However, the Court has held that in the absence of evidence of a well-grounded claim, the VA is prohibited in assisting the claimant. See Morton v. West, 12 Vet. App. 477 (1999). The veteran must satisfy three elements for each of his claims for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). 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, a claim may be well grounded by showing a link to service based upon the application of the rule for chronicity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997). The VA General Counsel has held in a precedential opinion that 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 ("objective indications" include "'signs,' in the medical sense of objective evidence perceptible to an examining physician); and (4) a nexus between the chronic disability and the undiagnosed illness. VAOPGCPREC 4-99 (issued May 3, 1999). The veteran's central contention in this claim is that he has multiple joint pain as a result of his service in the Persian Gulf. He related in a December 1996 statement that while serving the Persian Gulf he developed flu-like symptoms, and that after his return from that region he developed joint pain, particularly in his low back and knees. He stated that he was seen several times for this problem. An October 1994 retirement examination report noted that the veteran's lower extremities were normal, but that he had mechanical low back pain. An October 1995 rating decision granted service connection for mechanical low back pain, and thus, these complaints are not pertinent to the current claim. As a result of a prior claim for service connection, the veteran was provided a VA examination in February 1995. The veteran reported a history of degenerative joint disease of various joints. Objectively, the veteran's shoulders and hands displayed no deformity, discoloration or edema. X-rays of the hands, lumbosacral spine and shoulders reflected normal results. In September 1995, the veteran had complaints of feeling bad for the previous two weeks, with specific complaints of malaise, myalgia and a cough. A virus was suspected. The Board noted that an August 1998 rating decision granted service connection for acute pulmonary histoplasmosis. In December 1996, the veteran sought treatment for complaints of multiple arthralgia at an Air Force clinic. The RO afforded the veteran a VA examination in December 1996. He informed the examiner that he had been told that he had arthritis in his shoulders, neck and back many years previously, and that more recently, he complained of shoulder, neck and back pain that would increase when lying down. Objectively, the veteran was 5' 8" tall, and weighed 157 pounds, and his posture and gait were within normal limits. There was full range of motion of all extremities and the spine, and there was no swelling, atrophy or tenderness noted in the joints. Straight leg testing was negative, and there was no evidence of crepitus or deformity in the joints. Only a history of arthritis was related in the resulting VA examination report: there were no clinical or X-ray findings of arthritis. The RO afforded the veteran VA examinations subsequently, but none pertained to orthopedic disorders. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. See 38 C.F.R. § 4.40 (1999). In light of the above, the Board must find that the veteran's claim for service connection for multiple joint pain, to include as due to undiagnosed illness, is not well grounded. Initially, the Board would note that except for mechanical low back pain, which has been service connected, the veteran's various joint pains have not been given an underlying diagnosis, with the exception of vague arthralgia described above. Nonetheless, at VA examinations, no underlying diagnosis was proffered. In the absence of evidence of a claimed disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). As the veteran has not been given any underlying diagnosis as the cause of his complaints of various joint pain, a claim for service connection for joint pain on a direct basis is not plausible, and must be denied as not well grounded. In a similar manner, the veteran's claim based upon the provisions of 38 U.S.C. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness is not well grounded. In this regard, the Board would note that while the veteran does have complaints of joint and muscle pain, two of the disorders for which compensation is amenable under 38 U.S.C. § 1117(a) and 38 C.F.R. § 3.317, there was no perceptible evidence to an examining physician that the veteran suffered from joint or muscle pain at his VA examinations. Indeed, as noted above, there was full range of motion of all extremities and in the spine, and there was no swelling, atrophy or tenderness noted in the joints in December 1996. Regulations recognized that these are indicia of disuse of a joint due to pain. See 38 C.F.R. § 4.40. In the absence of evidence of joint pain that is perceptible to an examining physician, a claim for service connection for joint and muscle pain is not well grounded under the provisions of VA General Counsel Precedent Opinion 4-99. Effective Date Initially, earlier effective date claims are not to be determined on a "well grounded" basis. The Court has "noted that the use of the term 'well-grounded' should be confined to an evidentiary context. '[W]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law'." See Shields v. Brown, 8 Vet. App. 346, 351-352 (1995) [citing Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)]. The procedural history of the veteran's claim is relevant. In December 1994, the RO received a claim for service connection for several disorders. In February 1995, the veteran was provided a VA examination, and in an October 1995 rating decision, service connection was denied for acute pulmonary histoplasmosis and for diarrhea, characterized as a viral syndrome. That rating decision also denied service connection for a psychiatric disorder manifested by memory loss. The veteran was given notice of this decision in correspondence dated October 11, 1995. In addition, the RO enclosed a photocopy of the underlying rating decision and notice of appellate rights with that correspondence. The veteran had one year from the date of notification to appeal that decision. See 38 U.S.C.A. § 7105(b)(1)(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). The claims file reflects that the most recent claim for service connection for the disorders at issue was received by the RO on October 24, 1996. Thus, the veteran did not appeal the October 1995 rating decision within one year of the October 11, 1995 correspondence, and it is thus final. See 38 U.S.C.A. § 7105(b)(1)(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). After performing some development, the RO reopened the veteran's claims for service connection on the basis of new and material evidence, and the August 1998 rating decision granted service connection, effective October 24, 1996, the date the RO received the reopened claim. If compensation is granted after receipt of new and material evidence after a final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii) (1999). There is no evidence in the record, nor has the veteran alleged, that he filed a notice of disagreement with respect to the October 1995 rating decision within one year of receiving notice of the decision. Further, neither the veteran nor his representative has alleged that the October 1995 rating decision contained clear and unmistakable error in its denial. In light of the above, the Board must find that the law makes no provision for an effective date prior to October 24, 1996 for the grant of service connection. The evidence is not in equipoise and the benefit of the doubt rule is not applicable. See 38 C.F.R. § 3.102 (1999). ORDER Evidence of a well-grounded claim not having been submitted, service connection for multiple joint pain, to include as due to undiagnosed illness, is denied. Entitlement to an effective date prior to October 24, 1996 for a grant of service connection for gastrointestinal, pulmonary, and psychiatric disorders is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals