Citation Nr: 0000943 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-00 200A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for depression, to include as due to an undiagnosed illness. 2. Entitlement to service connection for hypertension, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a seizure disorder, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active duty service from October 1982 to February 1988, as well as active service in Southwest Asia from February 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied entitlement to service connection for depression, hypertension, and a seizure disorder, with all claims to include as due to an undiagnosed illness, as not well grounded. The RO also granted service connection for "history of a back condition." An appeal was received as to all three denials of the veteran's service connection claims. FINDING OF FACT There is competent medical evidence that suggests a link between the veteran's claimed psychiatric complaints, hypertension and seizure disorder and her exposure to toxic chemicals while on active duty during the Persian Gulf War. CONCLUSION OF LAW Claims of entitlement to service connection for depression, hypertension, and a seizure disorder are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The initial inquiry in reviewing any claim before the Board is whether the veteran has presented evidence of a well- grounded claim, that is, one which is plausible or capable of substantiation. The veteran carries the burden of submitting evidence "sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If he has not presented a well-grounded claim, his appeal must fail. While the claim need not be conclusive, it must be accompanied by supporting evidence; a mere allegation is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A well-grounded claim for service connection requires that three elements be satisfied. First, there must be competent evidence of a current disability, as established by medical diagnosis; second, there must be competent evidence of an incurrence or aggravation of a disease or injury in service, as established by lay or medical evidence, as appropriate; and, third, there must be competent evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as established by medical evidence or a medical opinion. See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). A service connection claim may also be well grounded, under 38 C.F.R. § 3.303(b), if evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical, unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If a chronic condition in service and since service is not shown, the claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed in service, continuity of symptomatology is demonstrated thereafter, and competent evidence relates a present disorder to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 493 (1997). A review of the veteran's written statements, and the transcript from her hearing, held in January 1998, shows that she asserts that she has depression, a seizure disorder and hypertension as a result of her service, to include as due to undiagnosed illnesses. She contends that her depression began during service in Saudi Arabia, and that she began having seizures and hypertension in about 1993. She also asserts that she may have been exposed to nerve gas or germ warfare because her unit was near an exploded ordnance facility at Kamisiyah, Iraq. The veteran's service records include her discharge report (DD Form 214), which shows that she served in South West Asia from February 1991 to April 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 neurological, neuropsychiatric and cardiovascular signs or symptoms. 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). I. Factual Background The veteran's service medical records include a physical examination report, dated in January 1988, which shows that the veteran's psychiatric and neurological systems were clinically evaluated as normal. A report of medical history accompanying the January 1988 report shows that the veteran denied having depression, but self-reported periods of unconsciousness and "high or low blood pressure." She did not otherwise self-report any relevant symptoms. A physical examination report, dated in May 1989 (performed in conjunction with the veteran's service in the Army Reserve) shows that the veteran's blood pressure was 140/90, and that the examiner stated that the veteran was to see a family physician for evaluation of her blood pressure. A report of medical history accompanying the May 1989 examination report shows that the veteran self-reported having depression and "high or low blood pressure," but denied having periods of unconsciousness. She stated that she had had low blood pressure all of her life, and that she had had increased stress and trouble sleeping lately with much depression. A "wellness check," dated in May 1989, indicates that the veteran was performing well in her blood pressure. As for the veteran's second period of active duty, a report of medical history, dated in January 1991, shows that the veteran denied having nervous trouble or any sort, or periods of unconsciousness, and that she reported having difficulty sleeping. The examiner noted low blood pressure. This report appears to show that the veteran reported that she was not sleeping well and had moderate insomnia (service medical records do not include an accompanying examination report for this medical history). As for the post-service evidence, a VA hospital report, dated in September 1994, shows that the veteran received treatment for a knee condition. This report is remarkable for a reported history of hypertension. A VA Persian Gulf Protocol examination report, dated in December 1994, shows that the veteran complained of depression, and stated that she was not taking any medications. Her neurological examination was unremarkable. Her blood pressure was 136/86. The claims file contains VA outpatient treatment reports, dated between 1994 and 1998. A report, in December 1994, shows that the veteran denied any past medical history other than a knee disorder. A report, dated in November 1995, appears to show treatment for complaints of depression. Reports, dated in February and March of 1996, show that the veteran reported having had a seizure that morning. She further reported having had seizures beginning in 1992, with her most recent seizure around the previous Thanksgiving, and that she had been taken off of seizure medication in 1993 after being seizure-free for one year. The assessment was seizure disorder, by history. A VA MRI report, dated in April 1996, was normal. A report, dated in October 1996, contains an impression of a seizure disorder and hypertension. A VA psychiatric examination report, dated in September 1997, shows that the Axis I diagnosis was major depression, and that the Axis III diagnoses included epilepsy. The claims file includes progress notes from the University Psychiatric Services (UPS), dated in 1997. A report, dated in September 1997, notes a history of bipolar disorder, and that the veteran was taking Zoloft and Valium. The Axis I diagnoses were bipolar disorder by history, and rule out drug abuse. The Axis III diagnoses included high blood pressure, and epilepsy. A report, dated in October 1997, notes a history of bipolar disorder, and shows that the veteran reported a problem with depression, as well as epilepsy and hypertension. The impressions were rule out bipolar disorder, rule out depression, rule out malingering and history of alcohol abuse. Reports dated in November 1997 are remarkable for a complaint of a seizure disorder the previous night, with no assessment or diagnosis provided. Other reports for this month contain an assessment of major depression, recurrent. The veteran was noted to be taking Dilantin. A letter from Dr. Grossfield, dated in October 1997, shows that the veteran presented with many complaints that included depression, and that she reported having been exposed to nerve gas or germ warfare. A history of hypertension and a seizure disorder necessitating treatment (medication) was noted. Medications included Zestril, Zoloft and Dilantin. Dr. Grossfield reported that, "There is something very peculiar about this whole medical scenario. I am concerned that there is something going on which is probably connected with the Gulf War Syndrome." A VA outpatient treatment report, dated in November 1997, shows that the veteran reported a history of depression, hypertension and a seizure disorder, and that her medication reportedly included Dilantin (for seizures), Lisinopril (for hypertension) and Zoloft (for depression). This report, as well as a VA outpatient treatment report, dated in February 1998, contains impressions/diagnoses of hypertension and a seizure disorder. A VA examination report, dated in July 1998, is remarkable for diagnoses that included a seizure disorder and hypertension. II. Analysis In reviewing the record, the Board notes that a letter from the Department of Defense (DOD), dated in July 1997, confirms that the veteran's unit was near Kamisiyah, Iraq in March 1991, as contended on appeal, and that the nerve agents sarin and cycolsarin may have been released into the air. The DOD further stated that the exposure levels would have been too low to activate chemical alarms or to cause any symptoms at the time, and that "[T]he current medical evidence indicates that long-term health problems are unlikely." The post-service medical evidence of record includes diagnoses of a psychiatric disorder, hypertension, and a seizure disorder. There is also a letter from the Department of Defense (DOD), dated in July 1997, that confirms that the veteran's unit was near Kamisiyah, Iraq in March 1991, as contended on appeal, and that the nerve agents sarin and cycolsarin may have been released into the air. The DOD further stated that the exposure levels would have been too low to activate chemical alarms or to cause any symptoms at the time, and that "[T]he current medical evidence indicates that long-term health problems are unlikely." While most of the post-service medical evidence shows diagnosed conditions without a link to service, aside from a 1994 VA examination, the question was not specifically addressed, and there is some medical evidence that supports the veteran's claims. The letter from Dr. Grossfield, dated in October 1997, shows that the veteran presented with many complaints that included depression, and that she reported having been exposed to nerve gas or germ warfare. She was noted to be taking Zoloft and Dilantin. Dr. Grossfield noted that, "There is something very peculiar about this whole medical scenario. I am concerned that there is something going on which is probably connected with the Gulf War Syndrome." While rather vague in nature, it is the Board's judgment that Dr. Grossfield's statement well grounds the veteran's claims (Epps, supra) because it suggests a causal link between the veteran's psychiatric complaints, hypertension, and seizure disorder and her alleged exposure to toxic chemicals during the Persian Gulf War. ORDER The veteran has presented well grounded claims for service connection for depression, hypertension, and a seizure disorder; the appeal is allowed to this extent only. REMAND Under the provisions of VBA Circular 20-92-29 (Revised July 2, 1997), the RO is required in claims alleging disability from exposure to environmental agents while in the Persian Gulf to "undertake all required development action, including requesting a VA general medical examination." Other specialist examinations are to be ordered as appropriate. In addition, VBA All-Stations Letter 98-17 (2/26/98) contains mandatory guidelines for disability examinations of Gulf War veterans outlined in a memorandum dated February 6, 1998. In view of the Board's decision finding that the veteran has submitted well grounded claims for service connection for depression, hypertension, and a seizure disorder, and in light of the fact that the veteran has not undergone a VA Persian Gulf War protocol examination since 1994, and not since the receipt of Dr. Grossfield's statement noted above, the case is hereby REMANDED to the RO for the following actions: 1. The veteran should be afforded appropriate VA examinations to determine the etiology and extent of her psychiatric disorder, to include depression, hypertension, and seizure disorder. The claims folder, a copy of this REMAND, and a copy of the February 6, 1998 memorandum containing the Guidelines for Persian Gulf War disability examinations must be made available to and be reviewed by the examiners prior to the examinations. The examiners should acknowledge such review in the examination reports. The examinations should be conducted under the new protocol for Persian Gulf War veterans claiming service connection for undiagnosed illnesses in order to determine the nature and extent of the veteran's claimed psychiatric disorder, to include depression, hypertension, and seizure disorder. All associated objective and subjective symptoms should be noted. If any such symptoms are attributed to any diagnosis, the examiners are asked to determine whether it is at least as likely as not that the diagnosed condition is the result of, or increased during, active service. The examiners should identify specifically which symptoms, if any, are not attributed to any diagnosis. See 38 C.F.R. § 3.317(a)(1)(ii) (1999). All findings should be set forth in typewritten reports. 2. When the development requested has been completed, the RO must adjudicate the veteran's well grounded claims for service connection for depression, hypertension, and a seizure disorder, to include as due to an undiagnosed illness, on the merits. If any benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant is hereby informed that she has a right to present any additional evidence or argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. R. F. WILLIAMS Member, Board of Veterans' Appeals