Citation Nr: 0003788 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-08 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for headaches to include due to undiagnosed illness. 2. Entitlement to service connection for night sweats to include due to undiagnosed illness. 3. Entitlement to service connection for aching joints to include due to undiagnosed illness. 4. Entitlement to service connection for nightmares to include due to undiagnosed illness. 5. Entitlement to service connection for memory loss to include due to undiagnosed illness. 6. Entitlement to service connection for a lung condition, including bronchitis, to include due to undiagnosed illness. 7. Entitlement to service connection for skin rashes to include due to undiagnosed illness. 8. Entitlement to service connection for fatigue to include due to undiagnosed illness. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from May 1971 to January 1992, to include a tour of duty in the Southwest Asia theater of operations. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The claims of entitlement to service connection for aching joints, nightmares, memory loss, a lung condition inclusive of bronchitis, and fatigue to include due to an undiagnosed illness are, in each instance, not supported by cognizable evidence demonstrating that the related claim is plausible or capable of substantiation. CONCLUSION OF LAW The claims for service connection for aching joints, nightmares, memory loss, a lung condition inclusive of bronchitis, and fatigue due, in each instance, to include due to an undiagnosed illness are, in each instance, not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Aching joints, nightmares, memory loss, a lung condition, to include bronchitis, and fatigue The threshold question to be answered concerning these claims for service connection is whether the veteran has presented, with respect to each disability, evidence of a well grounded claim, that is, one which is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); see Tirpak v. Derwinski, 2 Vet. App. 609 (1992). If a claimant does not submit evidence of a well grounded claim, VA is under no duty to assist him in developing facts pertinent to such claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990). For the reasons set forth below, the Board finds that the veteran has not met his burden of submitting evidence to support a belief by a reasonable individual that these claims are well grounded. Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). With respect to claims based on service in the Persian Gulf, the law provides that service connection may be established for chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the PGW or to a degree of 10 percent or more not later than December 31, 2001. 38 C.F.R. § 3.317 (1999). Of course, service connection may also be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The veteran contends that he has these disabilities and that they are traceable, in each instance, to the period in which he was stationed overseas during the Persian Gulf War (PGW). In this regard, he elaborates that, during such deployment, he was for several weeks exposed to the smoke of burning oil wells in Kuwait during the [latter] part of the PGW. Regarding the veteran's claim for service connection for aching joints due to undiagnosed illness, the Board initially observes that he is service connected, in pertinent part, for residuals of a left shoulder rotator cuff repair with degenerative changes; degenerative changes of the right wrist; lumbar arthritis; chondromalacia of the right knee; and for gouty arthritis of each foot. As pain is a manifestation of arthritis 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999), and as the law provides that an evaluation of the same disability under various diagnoses is to be avoided, 38 C.F.R. § 4.14 (1999), it follows that service connection for an achy shoulder, right wrist, lumbar spine, right knee and feet would violate the provisions of 38 C.F.R. § 4.14. Moreover, while "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted," Sanchez-Benitez v. West, No. 97- 1948 (U.S. Vet. App. Dec. 29, 1999), "[j]oint pain" is a designated sign or symptom which may comprise a manifestation of undiagnosed illness in accordance with 38 C.F.R. § 3.317(b). Turning then to the evidence the Board notes that the appellant's service medical record shows that he complained of joint pain in September 1984. Following the examination the examiner related these complaints to arthritis of the shoulder, hand and knee. When examined by VA in July 1992, the veteran complained of "[p]ain in...all [his] joints"; the pertinent diagnosis was gouty arthritis. More recently, when examined by VA in January 1996, the veteran complained of experiencing "chronic pain" in his left shoulder joint, and he was suspected as having rheumatoid arthritis involving joints including his hands, knees and ankles. As the veteran's symptoms have been associated with a known diagnosis it follows that service connection under the provisions of an "undiagnosed illness" is precluded. 38 C.F.R. § 3.317. Further, as service connection is already in effect for gouty arthritis, left shoulder arthritis, chondromalacia, and degenerative arthritis, it follows that any further grant of benefits would violate the provisions of 38 C.F.R. § 4.14. Simply put, where evidence of a disorder due to joint pain has been demonstrated service connection has been established. Therefore, additional benefits are not warranted. As pertinent to the claims of entitlement to service connection for nightmares and memory loss due to undiagnosed illness, the veteran indicated in January 1996 that he occasionally experienced nightmares about some of the things that transpired while he was stationed in the Persian Gulf, and that he had "some temporary loss of memory." Following examination the examiner felt that any memory loss was "transitory and...not significant." When evaluated for mental status purposes in January 1996, the veteran's memory was described as being "good." The veteran was assessed as having "[n]o psychiatric disease" on the foregoing VA examination, and it is well to note that he neither contends, nor does the evidence reflect, that he has any current disability/pathology of either acute or chronic derivation for which nightmares and/or memory loss are a manifestation. In the absence of such current disability/pathology, the presence of which is prerequisite to any favorable claim for service connection predicated on either an undiagnosed illness theory or a direct basis, plausible claims have not been presented and, therefore, such claims are not well grounded. 38 U.S.C.A. § 5107(a); Caluza. Concerning the veteran's claim for service connection for a lung condition, including bronchitis, due to undiagnosed illness, the service medical records note treatment for upper respiratory infections in October 1972 and May 1984; treatment for the flu in August 1980; treatment for early pneumonia in March 1977; treatment for bronchial congestion in January 1976; and treatment for viral symptoms in February 1975 and June 1988. In February 1989, the veteran was noted to have an upper lobe nodule on chest x-ray study, however, a computed axial tomography scan revealed a bone island, and no evidence of a pulmonary lesion or serious finding. When examined by VA in January 1996, the veteran complained of having frequent colds which settled in his bronchial tubes. The pertinent diagnosis was "chronic mild bronchitis." In light of the clinical finding that the veteran has 'bronchitis' serves to vitiate any notion of according service connection for a lung condition, inclusive of bronchitis, due to undiagnosed illness, inasmuch as the related compensation sought by the veteran is specifically predicated on disablement due to undiagnosed illness. See generally 38 C.F.R. § 3.317. In addition, the Board would observe that while it has taken note that an X-ray performed by VA in January 1994 revealed a possible "density" in the veteran's right upper lobe, the same, if in fact present, would still be representative of assessed pathology, i.e., granulomatous disease. See Curl v. Derwinski, 3 Vet. App. 98, 99 (1992). In view of the foregoing, then, the Board must conclude that a plausible claim for service connection for a lung condition, including bronchitis, due to undiagnosed illness, is not presented and that, accordingly, such claim is not well grounded. Likewise, as no competent evidence has been submitted linking either bronchitis or granulomatous disease to service the Board finds that any claim of entitlement to service connection on a direct basis is also not well grounded. Finally, regarding the claim of entitlement to service connection for fatigue due to undiagnosed illness, the Board is cognizant that "[f]atigue" is a designated sign or symptom which may comprise a manifestation of undiagnosed illness in accordance with 38 C.F.R. § 3.317(b). In this regard, the reports pertaining to each examination afforded the veteran by VA in January 1996 do not appear to reflect any complaint of fatigue, tiredness, etc. Moreover, the veteran neither contends, nor does the evidence reflect, that he has any current disability/pathology of either acute or chronic derivation of which fatigue is a manifestation. In the absence of such current disability/pathology, the presence of which, as was pointed out above, is a condition precedent to any favorable claim for service connection, a plausible claim for service connection for fatigue on either a direct basis or due to undiagnosed illness is not presented and, therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). Although the Board considered and denied these appeals on a ground different from that of the RO, the appellant has not been prejudiced by these decisions. This is because in assuming that the claims were well grounded, the RO accorded the claimant greater consideration than his claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant's claims are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VAOPGCPREC 16-92 (O.G.C. Prec. 16-92); 57 Fed.Reg. 49,747 (1992). Finally, as pertinent to each of the above-addressed issues, the Board is of the opinion that its discussion above bearing on each issue is sufficient, as to each respective disability for which service connection is claimed, to inform the veteran of the elements necessary to complete his application for a claim for service connection relative to each corresponding disability. See Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER Service connection for aching joints, nightmares, memory loss, a lung condition including bronchitis, and fatigue, to include due to undiagnosed illness is denied. REMAND The appellant is claiming entitlement to service connection for headaches. In this regard, his August 1991 retirement examination did not diagnose a headache disorder. Notably, however, during a January 1996 VA skin examination the examiner opined that that the appellant's headaches were due to arthritis. The veteran is service connected for arthritis involving the left shoulder, lumbar spine, both feet, and the right hand. Unfortunately, however, the examiner neither diagnosed a headache disorder, nor provided any reason or basis for his opinion concerning the etiology of the appellant's headaches. Accordingly, further development is in order. A review of the service medical records reveals no complaints or findings relative to either night sweats or a chronic skin rash. Notably, however, a VA examiner in January 1996 concluded that the appellant's night sweats and skin rashes were manifestations of his service connected diabetes. Once again, however, the examiner neither diagnosed night sweats nor a skin disorder, and he did not provide any reason or basis for his etiological opinion. Therefore, further development is in order. Accordingly, this case is REMANDED for the following action: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claims of entitlement to service connection for headaches, night sweats and skin rashes since January 1996. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified which have not been previously secured. 2. The RO should attempt to contact the VA examiner who conducted the January 1996 examination. He should be requested to review the claims folder and his examination report, and provide reasons and bases for his opinions that headaches are due to arthritis. He should also provide reasons and bases for the opinion that night sweats and skin rashes are manifestations of the appellant's service connected diabetes. All attempts to conduct this development must be documented. 3. If the referenced examiner is not available the veteran should be scheduled for special endocrine, dermatological and neurological examinations. The claims file must be made available to each examiner for review. All indicated tests and studies should be performed, and any laboratory studies ordered should be reviewed in the examiner's report. Thereafter, the neurologist must offer an opinion whether it is at least as likely as not that the appellant's headache disorder is caused or aggravated by arthritis or whether it is due to an undiagnosed illness incurred in the Persian Gulf. Moreover, the dermatologist and endocrinologist must offer opinions whether it is at least as likely as not that the appellant's night sweats and skin rashes are caused or aggravated by diabetes, or whether they are due to an undiagnosed illness incurred in the Persian Gulf. Complete reasons and bases must accompany any opinion offered. 3. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the RO must implement corrective procedures at once. If the benefits sought are not granted, the veteran and his representative should be furnished with a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted. DEREK R. BROWN Member, Board of Veterans' Appeals