Citation Nr: 0002712 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-31 930A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for residuals of a ruptured right eardrum. 3. Entitlement to service connection for fatigue, claimed as secondary to an undiagnosed illness. 4. Entitlement to service connection for memory loss, claimed as secondary to an undiagnosed illness. 5. Entitlement to a rating higher than 30 percent for service-connected headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran had active duty from October 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) from a January 1997 decision which denied service connection for bilateral hearing loss, a ruptured right eardrum, and for fatigue and memory loss claimed as due to an undiagnosed illness. In that decision, the RO also granted service connection and a 10 percent rating for headaches (due to an undiagnosed illness), and the veteran appealed for a higher rating. In a July 1999 decision, the RO granted a higher rating of 30 percent for service-connected headaches; the veteran has not indicated she is satisfied with this rating, and thus the appeal for a higher rating continues. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The veteran has not submitted competent evidence to show plausible claims for service connection for hearing loss and residuals of a ruptured eardrum. 2. The veteran's active duty included service in Southwest Asia during the Persian Gulf War. A condition manifested by chronic memory loss and fatigue was not present during service of for years later; symptoms of memory loss and fatigue have now been medically attributed to a diagnosed illness, fibromyalgia/chronic fatigue syndrome; and such diagnosed illness has not been medically linked to service, 3. Impairment from the veteran's service-connected headaches does not exceed that for the analogous condition of migraine with characteristic prostrating attacks occurring on an average of once a month over the last several months. CONCLUSIONS OF LAW 1. The veteran's claims for service connection for hearing loss and residuals of a ruptured right eardrum are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp 1999). 2. A disability manifested by fatigue and memory loss was not incurred in or aggravated by active service, either directly or as due to undiagnosed illness from Persian Gulf War service. 38 U.S.C.A. §§ 1110, 1117 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.317 (1999). 3. The criteria for a rating in excess of 30 percent for service-connected headaches have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.20, 4.124a, Code 8100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran had service with the Army National Guard (ANG). It appears that she had basic training from June 1986 to October 1986, although such has not been verified. Her current claims relate to her period of active duty, from October 1990 to May 1991, when her ANG unit was activated during the Persian Gulf War. During this period of active duty, she served in Southwest Asia from November 1990 to April 1991. Service medical records from before the veteran's active duty, including a November 1985 enlistment examination and a January 1990 periodic examination, show no pertinent defect. Service medical records from during the veteran's active duty (October 1990 to May 1991) show that in November 1990 she was treated at Fort Lee for an upper respiratory infection and right otitis media; the right tympanic membrane (eardrum) was pink and inflamed; and medication was prescribed. Later in November 1990, she was treated overseas for right ear symptoms. She reported right ear pain and that about three weeks earlier she had been treated at Fort Lee for an ear infection, but had obtained no relief with antibiotics. She indicated that she had decreased hearing in her right ear with fluid drainage. On examination, it was noted that the tympanic membrane of the right ear was retracted, with erythema and marginal perforation in the lower right corner. The diagnostic assessments were otitis media and upper respiratory infection. Medication was prescribed. On an April 1991 Southwest Asia Demobilization/Redeployment Medical Evaluation (on the same day as the service separation examination), the veteran, in response to a question of what diseases and injuries she had in Southwest Asian, listed an inner ear problem and pregnancy. On the form, she also marked a box to indicate "yes" in response to a question of whether she now had fever, fatigue, weight loss, or yellow fever (she did not specify which symptom(s) she had). The examiner who reviewed the veteran's responses noted that the veteran was currently pregnant. On the separation examination in April 1991, clinical evaluation showed the veteran's ears and eardrums were found to be normal. Audiometric testing revealed pure tone thresholds of 10, 0, 0, 0, and 10 decibels in the right ear and 10, 0, 0, 0, and 0 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 hertz, respectively. It was noted that her neurological system was clinically normal. It was noted she was about four months pregnant. On the accompanying medical history report, the veteran denied a history of hearing loss, ear trouble, memory loss, or frequent headaches. Current pregnancy and related weight gain were reported. A medical evaluation, a couple of days after the separation examination, focused on pregnancy and noted no other pertinent problems. In July 1996, the veteran submitted claims for service connection for headaches, memory loss, and fatigue, and asserted that each of these conditions was due to an undiagnosed illness from her service during the Persian Gulf War. She also submitted claims for service connection for hearing loss and a ruptured right eardrum. In a July 1996 letter, the veteran's mother, who said she was a registered nurse, stated that the veteran had poor memory, fatigue, and headaches since her return from service in the Persian Gulf War. She asserted that the veteran's problems related to service overseas. In statements dated in July 1996, the veteran's work supervisor and a coworker indicated that the veteran complained of migraine type headaches on a daily basis. It was noted that in order to remain at work, she continuously took medication to treat her headaches. An August 1996 VA audiological examination reveals pure tone thresholds of 10, 10, 20, 10, and 10 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 hertz, respectively. Pure tone thresholds in the left ear were 10, 5, 10, 5, and 5 decibels at the same frequencies. Speech recognition was 96 percent in the right ear and 94 percent in the left ear. The examiner noted that the veteran's hearing was within normal limits, bilaterally. A June 1996 magnetic resonance imaging (MRI) study of the veteran's brain was negative for pathology. On VA examination in September 1996, the veteran complained of headaches, hearing loss, fatigue in the morning, and memory problems. She reported a history of an ear infection with a ruptured eardrum during active duty. She said that the ear was healed and did not drain. The examiner noted that the left tympanic membrane was obscured by wax. The doctor indicated he inspected the right tympanic membrane and was unable to see to indentify the site of a former rupture; otherwise the tympanic membrane was translucent. It was noted the veteran's hearing appeared adequate to spoken voice during the examination. The veteran related that her headaches became manifest after her experience in Saudi Arabia and continued almost daily. When questioned about fatigue, she said that she had insomnia due to headache pain and often felt tired, particularly when waking up in the morning. She stated that she was not tired or fatigued with usual physical effort. It was noted that she worked full- time and was not forced to give up work due to lost strength or energy. The doctor said he was unable to discern from history any excess fatigue which was not explained by poor sleep and worry and pain. The diagnoses were history of headaches, history of hearing loss, status post tubal ligation, examination of excess fatigue, not found by history, normal physical examination. On VA neuropsychiatry examination in September 1996, the veteran stated that her headaches began in December 1991, after her son was born. She related that headaches occurred daily, lasting anywhere from one hour to all day. She said that she occasionally experienced nausea, poor concentration, or dizziness due to headaches. She said medication made her headaches better. The veteran reported that she also had memory loss, and in this regard she noted such problems as forgetting to do things, not finding things at home, and forgetting birthdays and special events. She said that she did not have disorientation. Objective findings were within normal limits. Headaches were diagnosed. Also diagnosed was memory loss, exhibited by forgetfulness; no dementia shown on examination. A December 1996 VA audiological examination reveals pure tone thresholds of 20, 10, 15, 15, and 20 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 hertz, respectively. Pure tone thresholds in the left ear were 5, 5, 5, 0, and 0 decibels at the same frequencies. Speech recognition was 98 percent in the right ear and 94 percent in the left ear. The veteran reported right ear tinnitus for several years but was otherwise indefinite as to cause or date of onset. It was noted that the veteran had bilateral hearing which was within normal limits. The examiner noted that examination by an otolaryngologist was recommended due to the veteran's reported history of numerous tympanic membrane perforations and complaints of unilateral, periodic tinnitus in the same ear. In a January 1997 decision, the RO denied service connection for bilateral hearing loss and a ruptured eardrum. Service connection was also denied for fatigue and memory loss claimed as due to an undiagnosed illness. Service connection for headaches due to an undiagnosed illness was granted, with a 10 percent rating. In her April 1997 notice of disagreement, the veteran argued that her headaches were at least 30 percent disabling. She asserted that she had headaches on a daily basis and severe headaches on an average of three days per week. She said that her right eardrum burst three times during service. She related that her memory loss affected her employment. In April 1997, the veteran was seen at Graystone Ear, Nose, and Throat Associates, where she underwent evaluation for a right ear infection and hearing loss in that ear. The audiology evaluation revealed pure tone thresholds in the right ear of 45, 45, 70, 55, and 60 decibels at 500, 1000, 2000, 3000, and 4000 hertz, respectively. Pure tone thresholds in the left ear were 10, 0, 0, 0, and 0 decibels at the same frequencies. Speech recognition was 96 percent in the right ear and 100 percent in the left ear. It was noted that the left ear had normal hearing, and there was mild to moderately severe conductive hearing loss in the right ear. A retest after treatment (for the right ear infection) was recommended. A medical record from this clinic visit notes that the veteran complained of frequent ruptures of the right ear with drainage. She said that the drainage helped her hearing only temporarily. She reported that she had tubes in her ears as a child. She maintained that being in Saudi Arabia made her ear condition worse. It was noted that she had right middle ear fluid. The left eardrum appeared normal. No purulence in her nose or nasopharynx was noted. A record from later that month shows that the right ear was clear. In an April 1997 statement, the veteran claimed that she had daily migraine headaches and took 15 to 20 ibuprofen tablets. She said that she had not missed work due to this problem since they occurred daily and she had to work to support her family. The statement was signed by five individuals who reportedly were aware of her daily headaches. The veteran submitted an April 1997 statement which was signed by 10 individuals. The statement noted that while she was in Saudi Arabia, she ruptured her right eardrum on three separate occasions. An April 1997 VA neurology consultation report shows that the veteran complained of daily headaches, fatigue, and memory loss. She said that headaches started insidiously about three years ago. The veteran related that the pain was constant, did not wake her from sleep, and was not exacerbated by anything but was possibly worse with menstrual periods. Headache pain was described as bifrontal. It was noted that headaches were not associated with nausea, vomiting, photophobia, or any neurological or visual symptoms except vague dizziness or blurred vision. The examiner noted that the veteran took large numbers of various medications to treat her headaches. Physical findings were normal on objective examination. The diagnostic impression was chronic daily headaches, possibly in combination with common migraine headaches; however, it was noted that the migraine history was not convincing. The examiner related that her symptoms might have been exacerbated by too many pills. The veteran was admitted to a VA medical center in June 1997 for an evaluation of Gulf War syndrome (GWS). The veteran reported severe, pressure-type headaches occurring four times per week. She said that such headaches caused her to have blurry or double vision. The veteran related that she suffered from extreme fatigue. She stated that she never felt rested, had trouble falling asleep, and woke up several times during the night. She said that her mother noticed memory loss when the veteran returned from Saudi Arabia. She reported that she had trouble remembering appointments and needed to be reminded to do things. The veteran said that she ruptured her eardrum six times, three times during service, and had some hearing trouble. She denied tinnitus. It was noted that diagnostic audiological evaluation revealed hearing within normal limits, bilaterally. The examiner noted that her right tympanic membrane had some fibrosis or scarring; however, light reflex was visible. No exudate or erythema was noted in either tympanic membrane. Middle ear pressure and acoustic reflexes were noted to be within normal limits. An electroencephalogram (EEG) was normal. A rheumatology consultation report showed no active rheumatologic disease. On psychiatric examination, no diagnosable mental illness was noted. Several neurological examinations over the course of her hospital stay were within normal limits. It was noted that the veteran had a history of multiple medical complaints following her service in Persian Gulf. At discharge from the VA medical center, the veteran was referred to Georgetown University Medical Center for further evaluation. In June 1997, the veteran was examined (on referral by the VA medical center) as part of a research project at Georgetown University Medical Center regarding "Persian Gulf War Syndrome." The veteran reported that she had a history of migraines which had increased to approximately four per week. She also reported symptoms of non-restorative sleep, right ear hearing loss secondary to ruptured eardrums six times, hair loss, fatigue, and long and short-term memory loss. She said that her symptoms began when she returned from active duty in the Persian Gulf in 1991 but worsened from the fall of 1994 to early 1995. The veteran complained of both tension and migraine headaches and described "seeing stars" with fast position changes. On examination it was noted that the right tympanic membrane had two well-healed scars. The examiner's assessment noted that based on the veteran's symptoms of fatigue, non-restorative sleep, tension and migraine headaches, and memory loss, a diagnosis of fibromyalgia/chronic fatigue syndrome was discussed with her. The remainder of the report concerns planned treatment of the veteran for fibromyalgia/chronic fatigue syndrome. On VA neurological examination in April 1998, the veteran reported constant headaches occurring over the past six years. She related that at times her vision got blurry and that she experienced occasional nausea. She indicated that she had not missed work due to her headaches. The neurological examination was within normal limits. The diagnosis was headaches, no neurological sequelae. In a July 1999 decision, the RO granted a higher rating to 30 percent for the veteran's service-connected headaches. II. Analysis A. Service connection claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The veteran claims service connection for hearing loss and residuals of a ruptured right eardrum, which she asserts were incurred during military service. She also claims service connection for fatigue and memory loss, which she asserts are due to an undiagnosed illness incurred during her service in the Persian Gulf. Her claims present the threshold question of whether she has met her initial burden of submitting evidence to show that her claims are well grounded, meaning plausible. If she has not presented evidence that her claims are well grounded, there is no duty on the part of the VA to assist her with her claims, and the claims must be denied. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136 (1994). For the veteran's claims for service connection to be plausible or well grounded, they must be supported by competent evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence), and of causality between service and a current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois, supra; Grottveit v. Brown, 5 Vet. App. 91 (1993). i. Service connection for hearing loss and residuals of a ruptured right eardrum. Service incurrence will be presumed for certain chronic diseases, including organic diseases of the nervous system (such as sensorineural hearing loss), if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service medical records show no hearing loss during the veteran's October 1990-May 1991 active duty. She was treated in November 1990 for a right ear infection (otitis media) and had an associated perforated eardrum at that time. However, the acute right ear infection cleared and the eardrum perforation healed, as shown by the fact that the ears and eardrums were clinically normal at the April 1991 service separation examination. Audiometric testing on the separation examination showed normal hearing in both ears. There is no evidence of hearing loss of either ear or a right eardurm perforation for years after service. VA examinations in 1996 revealed normal hearing, bilaterally, and no right eardrum perforation was found. Private medical records from April 1997 show the veteran then had acute otitis media of the right ear and associated conductive hearing loss in that ear. The right ear hearing loss was temporary, as shown by the fact that audiometric testing during VA hospitalization in June 1997 showed normal hearing in both ears. During that admission, the veteran reported her right eardrum had ruptured six times, three times during service. Scarring of the eardrum was noted during this admission and during a subsequent June 1997 examination at Georgetown University Medial Center. The Board notes that there are no medical records indicating chronic hearing loss in service, and there is no medical evidence of sensorineural hearing loss in the first year following separation from active duty to a compensable degree (for presumptive service incurrence) or otherwise. The medical records as a whole show no current chronic hearing loss of either ear. One requirement for a well-grounded claim is medical evidence of a current disability. Caluza, supra; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Even if the veteran currently had hearing loss, there is no medical evidence linking it to service, and without such evidence the claim is not well grounded. Caluza, supra. The Board notes the veteran's statements that she has hearing loss incurred during active duty; however, as a layman, she has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Absent competent medical evidence of a current hearing loss disability and linkage to service, the claim for service connection for hearing loss is implausible and must be denied as not well grounded. 38 U.S.C.A. § 5107(a); Caluza, supra. With regard to the claim of service connection for residuals of a ruptured right ear drum, the Board notes that although service medical records note an episode of perforation of the right tympanic membrane, the service records also show the perforation healed. A right eardrum perforation is not shown for years after service. Although some recent records reveal well-healed scars of the right tympanic membrane, there is also a history of right eardrum perforations which did not occur in service. No medical evidence has been submitted to show the veteran now has a right eardrum perforation related to service, or that she has any residual disability from the acute and transitory eardrum perforation in service. Without such competent medical evidence, the claim for service connection for residuals of a ruptured right eardrum is implausible and must be denied as not well grounded. Id. ii. Service connection for fatigue and memory loss claimed as due to an undiagnosed illness. The veteran's claims for service connection for fatigue and memory loss, claimed as a manifestation of an undiagnosed illness, are well grounded. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with her claims. 38 U.S.C.A. § 5107(a). The veteran served in the Southwest Asia theater of operations, from November 1990 to April 1991 during the Persian Gulf War. Service connection may be granted for certain disabilities due to undiagnosed illness of a veteran who served in the Southwest Asia theater of operations during the Persian Gulf War when there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, sleep disturbances, etc. Among the requirements for granting service connection for this type of disability are the following: the illness must become manifest during either active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more (under the appropriate diagnostic code of the rating schedule) not later than December 31, 2001; by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis; there must be objective evidence that is perceptible to an examining physician and other non- medical indicators that are capable of independent verification; a minimum of a 6 month period of chronicity; no affirmative evidence which relates the undiagnosed illness to a cause other than being in the Southwest Asia theater of operations during the Persian Gulf War; and the illness is not due to the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs and symptoms have been medically attributed to a diagnosed (rather then undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Service medical records from the veteran's active duty (October 1990 to May 1991) are negative for complaints or findings of fatigue or memory loss. The only possible exception is an April 1991 Southwest Asia Demobilization/Redeployment Medical Evaluation form on which the veteran answered "yes" to a general question of whether she now had fever, fatigue, weight loss, or yellow fever. She did not specify the exact symptoms she had, and the reviewing examiner essentially indicated that current symptoms were due to pregnancy at the time. On a 1996 VA general medical examination, the examiner indicated that excess fatigue was not found by history and that the veteran's complaints of fatigue were due to poor sleep, worry, and pain (from headaches). A normal physical examination was noted. On VA neuropsychiatric examination, the diagnoses included memory loss exhibited by forgetfulness, with no dementia shown. A June 1997 VA Gulf War Syndrome examination noted multiple medical complaints, including memory loss and fatigue; however, her neurological system was within normal limits. The veteran was then referred to Georgetown University Medical Center where she was examined in June 1997. There, her multiple complaints, including fatigue and memory loss, were attributed to a diagnosed illness, namely fibromyalgia/chronic fatigue syndrome. As the symptoms have been attributed to diagnosed illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Moreover, there is no medical evidence linking the diagnosed illness (first shown years after service) with the veteran's period of active duty, and thus there is no basis for direct service connection. The preponderance of the evidence is against the claims for service connection for memory loss and fatigue alleged to be due to undiagnosed illness. Thus, the benefit-of-the-doubt doctrine does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v Derwinski, 1 Vet. App. 49 (1990). B. Higher rating for service-connected headaches. The veteran's claim for a rating in excess of 30 percent for headaches is well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with her claim. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Although some of the veteran's medical records refer to some migraine symptoms, the veteran does not actually carry a diagnosis of migraine. However, the veteran's headaches are rated by analogy (38 C.F.R. § 4.20) under the rating code for migraine. Migraine, with characteristic prostrating attacks averaging 1 in 2 months over the last several months, is rated 10 percent. Migraine, with characteristic prostrating attacks occurring on an average of once a month over the last several months, is rated 30 percent. Migraine, with very infrequent completely prostrating and prolonged attacks productive of severe economic inadaptability, is rated 50 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The veteran reports daily headaches with severe headaches four times per week. She complains of some visual disturbance and nausea. The medical evidence shows fairly frequent headaches which require prescription medication. While the headaches are not shown to be prostrating (as in the analogous condition of migraine) they do appear to be of a frequency and severity that related impairment approximates that found in migraine with characteristic prostrating attacks occurring on an average of once a month over the last several months. Such supports a 30 percent rating for service-connected headaches, rating by analogy under Code 8100. The evidence clearly does not support an even higher rating of 50 percent for the veteran's service-connected headaches. She is able to maintain steady employment, and there is no evidence that her service-connected headaches result in impairment which approximates the analogous condition of migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (the 50 percent criteria under Code 8100). The weight of the evidence is against a rating in excess of 30 percent for service-connected headaches. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Service connection for hearing loss and residuals of a ruptured right eardrum is denied. Service connection for memory loss and fatigue, claimed as due to an undiagnosed illness, is denied. A rating in excess of 30 percent for service-connected headaches is denied. L. W. TOBIN Member, Board of Veterans' Appeals