Citation Nr: 0007737 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 94-29 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for headaches, to include as a result of undiagnosed illness. 2. Entitlement to service connection for loss of hair, to include as a result of undiagnosed illness. 3. Entitlement to service connection for brittle and split nails, to include as a result of undiagnosed illness. 4. Entitlement to service connection for chronic fatigue, to include as a result of undiagnosed illness. 5. Entitlement to service connection for joint pain, to include as a result of undiagnosed illness. 6. Entitlement to service connection for muscle aches, to include as a result of undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from July 1990 to April 1992. He served in the Southwest Asia Theater of Operations during the Persian Gulf War. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in June 1994 by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 1994, the veteran filed a notice of disagreement, a statement of the case was issued, and the veteran filed a substantive appeal. By rating decision in March 1997, the RO denied claims of entitlement to service connection for keratosis pilaris of the back, arms, and chest, for seborrheic dermatitis of the scalp, and face, and for acne of the chin and neck. The veteran initiated an appeal and a statement of the case was issued in March 1998. However, it does not appear that the appeal was completed with a substantive appeal, and those issues are therefore not in appellate status. 38 U.S.C.A. § 7105(a). The following decision of the Board addresses the issue of hair loss only without regard to the skin disorders adjudicated in the March 1997 rating decision. FINDINGS OF FACT 1. The veteran had military service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The claims file includes medical diagnoses of tension headaches, loss of hair/male pattern baldness and onychoschizia, but there is no medical evidence of a nexus between any of these diagnosed disorders and the veteran's active military service. 3. With regard to the claims for disabilities manifested by fatigue, joint pains and muscles aches, the claims file includes competent evidence of pertinent signs or symptoms, objective indications of chronic disability, and evidence of a nexus between chronic disability and an undiagnosed illness. CONCLUSIONS OF LAW 1. The veteran's claims of entitlement to service connection for tension headaches, for loss of hair, and for brittle and split nails are not well grounded. 38 U.S.C.A. §§ 1117, 5107(a) (West 1991); 38 C.F.R. § 3.317 (1999). 2. The veteran's claims of entitlement to service connection for chronic fatigue, for joint pains and for muscle aches are well grounded. 38 U.S.C.A. §§ 1117, 5107(a) (West 1991); 38 C.F.R. § 3.317 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, if a condition noted during service is not shown to be chronic, then generally a continuity of symptomatology after service is required for service connection. 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. 38 C.F.R. § 3.303(d). In addition to the above-referenced laws and regulations, 38 U.S.C.A. § 1117 provides for service connection in cases where a veteran suffers from chronic disability resulting from an undiagnosed illness which became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more between the end of such service and December 31, 2001. 38 C.F.R. § 3.317(a) further provides that the VA shall pay compensation to a Persian Gulf veteran who "exhibits objective indications of chronic disability" (manifested by certain signs or symptoms), which, by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. Id.; see also 38 U.S.C.A. § 1117. Signs or symptoms which may be manifestations of undiagnosed illnesses include those involving fatigue, muscle pain and joint pain. 38 C.F.R. § 3.317(b). "Objective indications" include both objective evidence perceptible to an examining physician and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2). However, 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). 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 a 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 lay, 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 during 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). With respect to claims involving Persian Gulf veterans, a well-grounded claim for compensation under 38 U.S.C.A. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness requires the submission of 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 an 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; and (4) a nexus between the chronic disability and the undiagnosed illness. See VAOPGCPREC 4-99 (May 3, 1999). A. Headaches, Loss of Hair, Brittle and Split Nails. With regard to the claims based on headaches, loss of hair and brittle and split nails, the claims file includes medical diagnoses of disabilities. Specifically, at VA examinations, examining physicians have diagnosed tension headaches, male pattern baldness, and onychoschizia. Tension headaches were diagnosed at VA general medical examinations in March 1996 and February 1998. Male pattern baldness was diagnosed at a VA neurological examination in January 1994 and at VA skin examinations in April 1996 and February 1998. Onychoschizia was diagnosed at a VA neurological examination in January 1994 and at a VA skin examination in February 1998. Since medical personnel have attributed the veteran's headaches, loss of hair and split and brittle nails to clinically diagnosed disorders, the undiagnosed illness provisions of 38 U.S.C.A. § 1117 need not be considered as the fact that there are medical diagnoses renders the claims not well-grounded under that statute. Further, after reviewing the record, the Board is unable to find any medical evidence of a nexus or link between any of these three medically diagnosed disorders and the veteran's active military service. The veteran's service medical records do not document complaints or clinical findings of headaches, loss of hair or problems with the nails. The report of VA general medical examination in November 1992, just a few months after the veteran's discharge from service, is also silent with regard to any pertinent complaints and clinical findings. Moreover, there is otherwise no medical opinion of record suggesting a link between the veteran's tension headaches, loss of hair or split and brittle nails and his military service. The Board emphasizes that while the veteran may believe that such a link exists, in order to well-ground a service connection claim there must be medical evidence of such a link. Laypersons are not competent to render opinions regarding medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a). Further, to the extent that male pattern baldness and/or split and brittle nails may be considered developmental or congenital in nature, such defects are not considered a disease or injury within the meaning of applicable legislation concerning service connection, 38 C.F.R. § 3.303(c). At any rate, assuming for the sake of argument that they can be considered as a disease or injury under VA law, without medical evidence of a nexus to service, they are not well-grounded. B. Fatigue, Joint Pain and Muscle Aches. The evidence of record reveals that there has not been a definite diagnosis to account for the veteran's complaints of fatigue, muscle aches, and joint pain. The Board therefore looks to the provisions of 38 U.S.C.A. § 1117 to see if the claims are well-grounded under the provisions dealing with disability due to undiagnosed illness. The record shows that the veteran had the requisite military service during the Persian Gulf War. The General Counsel's opinion cited earlier also provides that a well-grounded claim requires proof of one or more signs or symptoms of undiagnosed illness. In this regard, the veteran's reports of fatigue, muscle aches, and joint pain are deemed to be sufficient to meet that element, as such symptoms are reasonably susceptible to observation on his part. With respect to the third element for a well-grounded claim, "objective indications" include both objective evidence perceptible to an examining physician and other nonmedical indicators which are capable of independent verification. After reviewing the various medical records which include pertinent complaints voiced by the veteran as well as medical references to multiple joint pains, increasing fatigue and muscle aches, the Board believes that there are sufficient objective indications of record. The Board also believes the veteran's statements and testimony regarding a nexus encompasses matters which are capable of lay observation so as to effectively well-ground these claims. 38 U.S.C.A. § 5107(a). ORDER The veteran's claims of entitlement to service connection for headaches, for loss of hair, and for brittle and split nails are not well-grounded. To this extent, the appeal is denied. The veteran's claims of entitlement to service connection for chronic fatigue, for joint pain, and for muscle aches are well-grounded. To this extent, the appeal is granted, subject to the provisions set forth in the following remand portion of this decision. REMAND With regard to the well-grounded claims of entitlement to service connection for chronic fatigue, joint pains and muscle aches, the VA by law has a duty to assist the veteran. 38 U.S.C.A. § 5107(a). Moreover, as these claims involve consideration of whether the reported symptoms are due to undiagnosed illness, matters of some medical complexity are raised which must be resolved. The Board notes that although the veteran has been duly afforded various VA medical examinations, several reports refer to possible chronic fatigue syndrome and possible fibromyalgia. It appears, however, that no clear medical diagnoses have been rendered. In view of this apparent uncertainty, additional development of the medical evidence is necessary before the Board may proceed with appellate review. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. Any VA medical records (not already in the claims file) documenting treatment for fatigue, joint pains and/or muscle aches, should be obtained and made of record. 2. The veteran should be scheduled for special VA examinations to ascertain the nature and etiology of his claimed symptomatology of fatigue, joint pains and muscle aches. It is imperative that the examiners review the claims file in connection with the examinations, and all indicated special studies and tests are to be accomplished. All clinically perceptible indications of the claimed fatigue, joint pains and muscle aches should be reported by the examiners. After reviewing the claims file and examining the veteran, the examiners should clearly indicate whether or not the claimed fatigue, joint pains and muscle aches can be attributed to known clinical diagnoses. 3. After completion of the above, the RO should review the expanded record and determine whether the veteran's claims based on fatigue, joint pains and muscle aches can be granted under all applicable laws and regulations, including those addressing disability due to undiagnosed illness. As to any claim which remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this remand is to clarify matters of medical complexity. The veteran and his representative are free to submit additional evidence and argument in support of the issues remanded by the Board. ALAN S. PEEVY Member, Board of Veterans' Appeals