Citation Nr: 0005030 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-02 156 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for leg stiffening or tightening due to an undiagnosed illness. 2. Entitlement to service connection for blurry vision and photophobia due to an undiagnosed illness. 3. Entitlement to service connection for fatigue due to an undiagnosed illness. 4. Entitlement to service connection for choking on food due to an undiagnosed illness. 5. Entitlement to service connection for urinary frequency due to an undiagnosed illness. 6. Entitlement to service connection for excessive sweating/night sweats due to an undiagnosed illness. 7. Entitlement to service connection for abnormal white blood cell count due to an undiagnosed illness. 8. Entitlement to service connection for a skin disorder due to an undiagnosed illness. 9. Entitlement to service connection for male pattern baldness due to an undiagnosed illness. 10. Entitlement to service connection for a psychiatric disorder due to an undiagnosed illness. 11. Entitlement to service connection for headaches due to an undiagnosed illness. 12. Entitlement to an evaluation in excess of 10 percent for chronic gastritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from January 1991 to June 1991. From January 22 to May 17, 1991 he served in Southwest Asia. He also had three months and eight days of prior active service. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Detroit Regional Office (RO). ? In an October 1992 rating decision, the RO, in part, denied the appellant's claims of service connection for tinnitus and chronic gastritis. The RO established service connection for gastritis, evaluated at 10 percent disabling, in an August 1993 rating decision. The Board granted service connection for tinnitus in an October 1996 decision and the RO assigned a noncompensable evaluation in an October 1996 rating decision. The appellant expressed disagreement with the evaluations assigned to each of these disabilities. Thereafter, the appellant perfected an appeal as to the claim for a higher evaluation for gastritis, which was remanded by the Board in October 1996. However, as to the tinnitus claim, the RO issued to the appellant a supplemental statement of the case in October 1999 and properly informed him that to perfect an appeal he had to respond within 60 days. The record includes no communication from the appellant subsequent to October 1999 and only two statements from his representative, neither of which discussed the tinnitus claim. Thus, in the absence of a substantive appeal concerning this issue, the Board does not have jurisdiction over the claim seeking a higher evaluation for tinnitus. ? In a September 1997 rating decision, the RO denied the appellant's claim of service connection for headaches due to an undiagnosed illness. He disagreed with the determination and this appeal ensued. ? In a March 1999 rating decision, the RO denied the appellant's claims of service connection for leg stiffening or tightening, blurry vision and photophobia, fatigue, choking on food, urinary frequency, excessive sweating/night sweats, abnormal white blood cell count, a skin disorder, male pattern baldness, and a psychiatric disorder, all due to an undiagnosed illness. He disagreed with the determinations and this appeal ensued. In April and June 1999 statements, the appellant requested a hearing before a local hearing officer at the RO so that he could provide testimony as to his claims concerning manifestations of an undiagnosed illness. The RO scheduled a hearing in September 1999. However, the appellant did not appear for the hearing. FINDINGS OF FACT 1. No competent evidence has been submitted linking the post-service findings of leg stiffening or tightening to an undiagnosed illness. 2. No competent evidence has been submitted linking the post-service findings of blurry vision and photophobia to an undiagnosed illness. 3. No competent evidence has been submitted linking the post-service findings of fatigue to an undiagnosed illness. 4. No competent evidence has been submitted linking the post-service findings of choking on food to an undiagnosed illness. 5. No competent evidence has been submitted linking the post-service findings of urinary frequency to an undiagnosed illness. 6. No competent evidence has been submitted linking the post-service findings of excessive sweating/night sweats to an undiagnosed illness. 7. No competent evidence has been submitted linking the post-service findings of abnormal white blood cell count to an undiagnosed illness. 8. No competent evidence has been submitted linking the post-service findings of a skin disorder to an undiagnosed illness. 9. No competent evidence has been submitted linking the post-service findings of male pattern baldness to an undiagnosed illness. 10. No competent evidence has been submitted linking the post-service findings of a psychiatric disorder to an undiagnosed illness. 11. No competent evidence has been submitted linking the post-service findings of headaches to an undiagnosed illness. CONCLUSIONS OF LAW 1. The claim of service connection for leg stiffening or tightening due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of service connection for blurry vision and photophobia due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of service connection for fatigue due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim of service connection for choking on food due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim of service connection for urinary frequency due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 6. The claim of service connection for excessive sweating/night sweats due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 7. The claim of service connection for abnormal white blood cell count due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 8. The claim of service connection for a skin disorder due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 9. The claim of service connection for male pattern baldness due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 10. The claim of service connection for a psychiatric disorder due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 11. The claim of service connection for headaches due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The appellant contends that he incurred an undiagnosed illness disorder manifested by a series of symptomatology, including leg stiffening or tightening, blurry vision and photophobia, fatigue, choking on food, urinary frequency, excessive sweating/night sweats, abnormal white blood cell count, a skin disorder, male pattern baldness, a psychiatric disorder, and headaches, as a result of his Persian Gulf service. The service medical records are silent as to any complaints or findings of leg stiffening or tightening, blurry vision and photophobia, fatigue, choking on food, urinary frequency, excessive sweating/night sweats, abnormal white blood cell count, a skin disorder, male pattern baldness, a psychiatric disorder, and headaches. VA examination in July 1992 noted the appellant's complaints of headaches. VA examination in April 1993 showed some dyspepsia and chronic gastritis. VA examination in February 1997 showed that the appellant complained of intermittent abdominal pain, occasional nausea, and excessive bloating since his return from service. The diagnoses included self-limiting symptoms suggestive of irritable bowel syndrome and history of gastritis. In an undated Gulf War Illnesses Interview Worksheet, the appellant reported that he had or had experienced recurring severe headaches, fatigue, joint and muscle pain, memory loss, recurring rashes, lumps under the skin, depression, irritability, night sweats, insomnia, urinary urgency and frequency, insomnia, abnormal hair loss, and diarrhea or constipation since his return from the Persian Gulf. He also reported that during his service in Southwest Asia, he experienced headaches, nausea, diarrhea, and blurry vision or photosensitivity. He also noted that he was subjected to two SCUD missile attacks, that he first noticed an uncontrollable urge to urinate during his service, and that he was given a "mysterious shot" that was not recorded in his medical records, after which his symptoms and ailments became greater and more frequent. The appellant's common-law spouse wrote in a July 1998 statement that when the appellant returned from service she noticed his headaches, startle response, leg muscle tightening, hair loss, and sleep disturbances. VA chronic fatigue syndrome examination in October 1998 indicated that the appellant noticed fatigue after returning from the Persian Gulf War. The examiner noted that he denied low-grade fever, non-exudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, and falling asleep on the telephone or driving. The examiner noted that the appellant did complain of muscle tightness while walking, depression occasionally, falling asleep watching television, and inability to swallow causing him to vomit. The diagnoses included chronic fatigue, by history, cause not known; no history of any hematological disorder; history of dysphagia, with an upper gastrointestinal series showing a small hiatal hernia without reflux; no history of narcolepsy or insomnia, with his claim of excessive sleepiness, cause not known; moderate hypercholesterolemia; and hair loss, most likely male pattern baldness. VA neurologic examination in October 1998 showed that the appellant complained, on his return from service, of marked indigestion, tightness of all muscles, difficulty swallowing, and recurrent headaches. Examination revealed the appellant to be alert and cooperative, without neurologic or muscular impairment. The diagnosis was migraine headache. VA orthopedic examination in October 1998 indicated that the appellant complained of tightness in the leg muscles, which started in 1992. Examination of the lower extremities was normal. The diagnosis was subjective complaint of tightness of both legs, without objective evidence of any diagnosable pathology. VA dermatologic examination in October 1998 noted that during his service the appellant witnessed oil wells on fire. It was noted that the appellant complained of itching of lesions on his arms, chest, groin, thighs, and legs, characterized by discomforting blisters lasting about one week. Examination of the chest, arms, back, face, and neck was normal. The diagnosis was bullous disease, by history, possible explanations being contact dermatitis, bullous impetigo, or urticaria. VA psychiatric examination in December 1998 noted that the appellant complained of depression, anger, and startle reaction. The diagnoses included adjustment disorder related in part to conflict with VA, presumably over this appeal, with depressed mood, multiple physical symptoms including diarrhea, muscle tightening, and chronic headaches. II. Pertinent Law and Regulation Service connection may be established by utilizing a statutory presumption available only to those who served in the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.317. VA shall pay compensation to a Persian Gulf War 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: (i) became manifest either during active military, naval, or air 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; and (ii) by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. Compensation shall not be paid 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 was affirmative evidence of a supervening condition or if the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). Signs or symptoms which may be manifestations of undiagnosed illnesses include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) sign or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; or (13) menstrual disorders. 38 C.F.R. § 3.317(b). The threshold question that must be resolved with regard to a claim is whether the appellant has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, then the appeal fails as to that claim and the Board cannot assist the appellant in any further development of that claim. Morton v. West, 12 Vet. App. 477, 485 (1999). 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; and (4) a nexus between the chronic disability and the undiagnosed illness. VA O.G.C. Prec. Op. 4-99, slip op. at 9-10 (May 3, 1999). See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (generally description of a well- grounded claim). In the absence of any one of these elements, a claim for service connection is not well grounded and must be denied. Edenfield v. Brown, 8 Vet. App. 384, 388-389 (1995). With respect to the second and fourth elements, evidence that the illness is "undiagnosed" may consist of evidence that the illness cannot be attributed to any known diagnosis or, at minimum, evidence that the illness has not been attributed to a known diagnosis by physicians providing treatment or examination. The type of evidence necessary to establish a well-grounded claim as to each of those elements may depend upon the nature and circumstances of the particular claim. For purposes of the second and third elements, the manifestation of one or more signs or symptoms of undiagnosed illness or objective indications of chronic disability may be established by lay evidence if the claimed signs or symptoms, or the claimed indications, respectively, are of a type which would ordinarily be susceptible to identification by lay persons. If the claimed signs or symptoms of undiagnosed illness or the claimed indications of chronic disability are of a type that would ordinarily require the exercise of medical expertise for their identification, then medical evidence would be required to establish a well-grounded claim. With respect to the third element, a veteran's own testimony may be considered sufficient evidence of objective indications of chronic disability, for purposes of a well- grounded claim, if the testimony relates to non-medical indicators of disability within the veteran's competence and the indicators are capable of verification from objective sources. Medical evidence would ordinarily be required to satisfy the fourth element, although lay evidence may be sufficient in cases where the nexus between the chronic disability and the undiagnosed illness is capable of lay observation. VA O.G.C. Prec. Op. 4-99, slip op. at 9-10 (May 3, 1999). III. Analysis The first element of a well-grounded claim requires some evidence of active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The service personnel records indicated that the appellant served in Southwest Asia from January 22 to May 17, 1991, thereby satisfying the initial element of a well- grounded claim. The second element requires lay or medical evidence manifesting one or more signs or symptoms of undiagnosed illness. The evidence summarized above documents the appellant's complaints of leg stiffening or tightening, blurry vision and photophobia, fatigue, choking on food, urinary frequency, excessive sweating/night sweats, abnormal white blood cell count, a skin disorder, male pattern baldness, a psychiatric disorder, and headaches. These noted complaints correspond with signs or symptoms that may be manifestations of undiagnosed illnesses, thereby satisfying the second element of a well-grounded claim. The third element of a well-grounded claim requires evidence of 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. The evidence summarized above does not include any objective indications of blurry vision and photophobia and an abnormal white blood cell count. Similarly, the October 1998 VA orthopedic examination indicated that there was no objective evidence of any pathology involving leg stiffening or tightening. Thus, the claims of service connection for abnormal white blood cell count, blurry vision and photophobia, and leg stiffening and tightness due to an undiagnosed illness fail the third element of a well-grounded claim. The Board need not analyze in detail the evidence concerning objective indications of the other claimed disorders, since the record does not satisfy the fourth and final element of a well-grounded claim, requiring competent medical evidence linking any such current objective indications to an undiagnosed illness. The record is silent as to the etiology of any findings suggestive of choking on food, urinary frequency, excessive sweating/night sweats, and male pattern baldness. Thus, the claims of service connection for those disorders due to an undiagnosed illness are not well grounded. As to the claim concerning a skin disorder, the October 1998 VA dermatologic examination included three possible explanations for the appellant's complaints, including contact dermatitis, bullous impetigo, or urticaria. Thus, the examiner did not link any findings of a skin disorder to an undiagnosed illness. Similarly, the December 1998 VA psychiatric examination found that an adjustment disorder manifested the appellant's response to his physical complaints and to his perceived conflict with VA, presumably over this appeal. Again, the examiner did not link any findings of a psychiatric disorder to an undiagnosed illness. Finally, the October 1998 VA neurologic examination characterized the appellant's complaints of headaches as migraine and did not link them to an undiagnosed illness. Thus, the claims of service connection for choking on food, urinary frequency, excessive sweating/night sweats, male pattern baldness, a skin disorder, headaches, and a psychiatric disorder are not well grounded. As to the claim of service connection for fatigue, the October 1998 VA chronic fatigue syndrome examination noted that the cause of this disorder was not known, thus apparently linking the complaints and findings of fatigue to an undiagnosed illness. However, the record does not include objective evidence indicating that the appellant's fatigue was manifest to a degree of 10 percent or more. Chronic fatigue syndrome is rated under criteria set forth at 38 C.F.R. § 4.88b, Diagnostic Code 6354, which provides for a 10 percent evaluation for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; symptoms controlled by continuous medication. The evidence of record, and specifically the October 1998 VA examination, does not indicate that the fatigue noted is debilitating, causes cognitive impairment, or requires use of continuous medications. Therefore, with respect to the claim of service connection for fatigue due to an undiagnosed illness, the evidence of record does not satisfy the third element of a well-grounded claim. For the reasons discussed above, the claims are not well grounded and VA cannot assist the veteran in further development of the claim. 38 U.S.C.A. § 5107(a); Morton, 12 Vet. App. at 485. Although where claims are not well grounded VA does not have a statutory duty to assist the claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claims. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the RO fulfilled its obligation under § 5103(a) in the July 1998 and May 1999 statements of the case in which the appellant was informed that the reason for the denial of the claim was the lack of evidence linking the appellant's complaints to an undiagnosed illness. Furthermore, by this decision, the Board is informing the appellant of the evidence which is lacking and that is necessary to make the claim well grounded. When the Board addresses in its decision a question that has not been addressed by the RO, in this case well groundedness, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the appellant has been accorded ample opportunity by the RO to present argument and evidence in support of his claim. Any error by the RO in deciding this case on the merits, rather than being not well grounded, was not prejudicial to the appellant. ORDER Entitlement to service connection for leg stiffening or tightening due to an undiagnosed illness is denied. Entitlement to service connection for blurry vision and photophobia due to an undiagnosed illness is denied. Entitlement to service connection for fatigue due to an undiagnosed illness is denied. Entitlement to service connection for choking on food due to an undiagnosed illness is denied. Entitlement to service connection for urinary frequency due to an undiagnosed illness is denied. Entitlement to service connection for excessive sweating/night sweats due to an undiagnosed illness is denied. Entitlement to service connection for abnormal white blood cell count due to an undiagnosed illness is denied. Entitlement to service connection for a skin disorder due to an undiagnosed illness is denied. Entitlement to service connection for male pattern baldness due to an undiagnosed illness is denied. Entitlement to service connection for a psychiatric disorder due to an undiagnosed illness is denied. Entitlement to service connection for headaches due to an undiagnosed illness is denied. (CONTINUED ON NEXT PAGE) REMAND The claim of entitlement to an evaluation in excess of 10 percent for chronic gastritis is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, it is not inherently implausible. See Drosky v. Brown, 10 Vet. App. 251, 254 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (contention of an increase in disability severity renders claim well grounded). VA has a statutory obligation to assist the appellant in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a). With respect to the claim of entitlement to an evaluation in excess of 10 percent for chronic gastritis, the appellant's most recent examination concerning that disability was in February 1997, three years ago. The Board is not required, pursuant to its duty to assist to remand solely because of the passage of time since the preparation of an otherwise adequate examination report. An exception exists to this general rule exists to the extent that the appellant asserts that the disability in question has undergone an increase in severity since the time of the examination. VA O.G.C. Prec. Op. 11-95, slip op. at 10 (Apr. 7, 1995). In this case, the appellant has so asserted, and the claim for an increased evaluation will be remanded to the RO for development. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA is required to afford a contemporaneous medical examination where examination report was approximately two years old); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The case is REMANDED for the following development: 1. The RO should request that the appellant supply the names and addresses of any individuals or treatment facilities that have treated him for chronic gastritis since February 1997, and the dates of such treatment. After securing any necessary releases, the RO should obtain complete clinical records of such treatment and associate them with the claims folder. 2. The RO should schedule the appellant for an examination to determine the nature and severity of his chronic gastritis. The claims folder and a copy of this REMAND must be made available to the physician for review in conjunction with the examination. The pertinent history concerning the service-connected condition should be obtained, and all necessary tests and studies should be accomplished. The report of examination should contain a detailed account of all manifestations of the disabilities found to be present. 3. When the aforementioned development has been completed, the RO should review the record to ensure it is in compliance with this REMAND. If not, the RO should undertake remedial action before returning the claim to the Board. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). On completion of the development requested, to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. The case should then be returned to the Board. He has the right to submit additional evidence/argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. WAYNE M. BRAEUER Member, Board of Veterans' Appeals