9422- Pain Case

[allan]

Hello Betrayed,

is this any help to you?

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 02-1233

Dennis J. Hamilton, Appellant,

v.

Anthony J. Principi,

Secretary Of Veterans Affairs, Appellee.

Before IVERS, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

IVERS, Chief Judge: The appellant, Dennis J. Hamilton, appeals from

a July 5, 2002, decision of the Board of Veterans' Appeals (BVA or Board)

that denied entitlement to service connection for a left elbow disability

and denied entitlement to service connection for arthralgias of multiple

joints, claimed as a chronic disability resulting from an undiagnosed

illness. The appellant, through counsel, filed a brief and a reply brief,

and the Secretary filed a brief. This appeal is timely, and the Court

has jurisdiction pursuant to 38 U.S.C. 7252(a). Summary disposition

is appropriate under Frankel v. Derwinski, 1 Vet.App. 23 (1990). For the

reasons stated herein, the Court will remand the appellant's left elbow

condition claim and affirm the Board decision with respect to the service

connection claim for arthralgias of multiple joints.

I. FACTS

The appellant had active duty service in the U.S. Marine Corps from

September 1973 to March 1978 and in the U.S. Army from November 1990 to

August 1991, including service in the Persian Gulf from January 1991 to

July 1991. Record (R.) at 20, 22. Service medical records (SMRs)

indicate that in January 1991, the appellant complained of left arm pain

following physical training that was subsequently diagnosed as tendinitis.

R. at 106. In April 1991, his left elbow pain

was diagnosed as olecranon bursitis. R. at 108. The appellant

complained of occasional left elbow pain in August 1991, but demonstrated

full range of motion on examination and x-rays did not indicate swelling

or signs of trauma. R. at 126. The appellant was diagnosed with

tendinitis of the left elbow. Id.

The appellant underwent Desert Storm medical evaluations in February

1995 and March 1995. R. at 124, 130-37. The appellant complained of

arthralgia in the left elbow. R. at 124. Arthralgia is defined as "pain

in a joint." Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988

). The examination report noted a normal chest, no significant

abnormality in the knees, and bilateral bony spurs in the elbows. R. at

135.

The appellant filed a claim for compensation in July 1996 for

disabilities of the joints, including the knees, elbows, and hands. R. at

140-44. During a VA examination in September 1996, the appellant claimed

to have spontaneously developed pain in both wrists and both knees while

serving in the Persian Gulf. R. at 151. Although there was no history of

swelling or injury in those joints, the appellant stated his joints "hurt

all the time." Id. The examining physician reported full range of motion

in the appellant's joints and could detect "no objective evidence of

organic pathology in the left elbow, the right wrist, left wrist, right

knee or left knee." In addition, "x-rays of the [] joints [were] made to

verify this impression." R. at 152. The regional office (RO) notified

the appellant in July 1997 that additional evidence was necessary to

substantiate his claim. R. at 189-91. In September 1998, the appellant

submitted a statement of a person who served with him during Desert Storm

and in civilian life corroborating that the appellant had frequently

complained of joint pain. R. at 197.

The RO denied service connection for left elbow tendinitis and

multiple arthralgias in April 1999. R. at 200-04. The appellant filed an

appeal later that same month. R. at 206. The Board remanded the appeal

to the RO with instructions to gather additional medical records. The RO

considered the additional medical records in October 2000 and issued a

Supplemental Statement of the Case (SSOC) denying the claim. R. at 251-67

. The Board again remanded the appellant's claim following the enactment

of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-

475, 3, 114 Stat. 2096, 2096-97 (2000) (codified at 38 U.S.C. 5103-

5103A). R. at 271-74. In July 2001, the appellant indicated that he did

not have additional evidence to submit in support of

his claim. R. at 276. The RO issued an SSOC in September 2001 that

again denied the appellant's claim for service connection. R. at 283-93.

The RO stated that there was no evidence that either condition was

incurred in, or aggravated by, the appellant's service. R. at 292.

II. ANALYSIS

The Court notes the applicability of the VCAA to the appellant's

claim. However, because neither party has raised the issue, the Court

will not address the matter. See Maxson v. Principi, 15 Vet.App. 241,

242 (2001) (per curiam order); Tellex v. Principi, 15 Vet.App. 233,

240 (2001).

A. Left Elbow Disability

The Secretary concedes that the appellant's service connection claim

for a left elbow disability should be remanded because the Board decision

reaches contradictory conclusions regarding evidence of objective

pathology. Secretary's Brief (Br.) at 6. After reviewing the record, the

Court agrees and will remand the left elbow claim so that the Board may

provide an adequate statement of the reasons and bases as to the question

of whether the appellant's left elbow condition is supported by evidence

of objective pathology. 38 U.S.C. 7104(d)(1).

B. Arthralgia Claim

The appellant attributes his arthralgia disability to an undiagnosed

illness resulting from his service in the Persian Gulf War from January

1991 to July 1991. Appellant's Br. at 5-6. As a Persian Gulf War veteran,

the appellant's disability claim is evaluated pursuant to 38 U.S.C. 1117 (

2004). Section 1117 and 38 C.F.R. 3.317 authorize the Secretary to

compensate a Persian Gulf War veteran who "exhibits objective indications

of a qualifying chronic disability" that became manifest either (1) during

active duty in the Southwest Asia theater of operations, or (2) to a

degree of 10% or more within the presumptive period following service in

the region. 38 U.S.C. 1117(a)(1)(A) and (B) (2004); 38 C.F.R. 3.317(a)(

1) (2003). In regulation, the Secretary defined the presumptive period as "

not later than December 31, 2006." 38 C.F.R. 3.317(a)(1)(i) (2003). A "

qualifying chronic disability" is defined as a chronic disability

resulting from an undiagnosed

illness; a medically unexplained chronic multisymptom illness, that is

characterized by a cluster of symptoms, such as chronic fatigue syndrome,

fibromyalgia, and irritable bowel syndrome; or any illness the Secretary

determines warrants presumption of service connection. 38 U.S.C. 1117(a)(

2); 38 C.F.R. 3.317(a)(2)(i). For purposes of section 1117, "

'objective indications of chronic disability' include both 'signs,' in the

medical sense of 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)(3) (2003).

In the decision on appeal, the Board evaluated the appellant's SMRs

and determined that "the record does not contain medical evidence of onset

of multiple joint arthralgias during the [appellant's] active military

service." R. at 15. The Board then addressed whether his condition was

manifest to a degree of 10% or more during the presumptive period

following service. R. at 12. Since the appellant's chief complaint was

arthralgia in multiple joints and joint pain may be a manifestation of an

undiagnosed illness for section 1117 purposes, the Board stated that the

appellant's claimed disability met the definition of "qualifying chronic

disability." R. at 12. The Board evaluated the appellant's condition by

analogy to degenerative arthritis (38 C.F.R. 4.71a, Diagnostic Code (DC)

5003) and fibromyalgia (38 C.F.R. 4.71a, DC 5025). R. at 13. 38 U.S.C

. 1117(g)(5); see also 38 C.F.R. 3.317(b)(5). In each instance, the

Board found that, although the appellant had "subjective complaints of

multiple joint pain, medical examiners have not found clinical evidence of

compensable disability such as limitation of motion, instability[,] or

subluxation of a joint." R. at 16. The Board also found that there were "

no objective indications of disability, i.e., signs in the sense of

objective evidence perceptible to an examining physician, or other, non-

medical indicators that are capable of independent verification." Id.

Before the Court, the appellant asks for a reversal of the Board

decision. Appellant's Br. at 19. The appellant acknowledges that "the

Board was correct that the symptoms complained of were similar to

arthritis or fibromyalgia," but contends that these diagnostic codes "did

not adequately reflect the degree of disability." Appellant's Br. at 9.

The appellant argues that "ince the condition for which the [

appellant] seeks compensation is defined as being 'undiagnosed[,]' it is

inconsistent with the regulatory and statutory provisions relating to

Persian Gulf Syndrome to deny a rating based on a failure to meet [the

diagnostic] criteria of other diseases." Id. Although the appellant

denies

the implication that his condition is psychosomatic in origin or that he

suffers from a mental illness, he argues that his disability is more

analogous to a neurogenic condition than to an organic disability.

Appellant's Br. at 10. The appellant claims that his condition is more

similar to somatization disorder (DC 9421), pain disorder (DC 9422), and

conversion disorder (DC 9424), and the Board erred in not applying the DCs

for these conditions to his disability. Id.

The Court may set aside the Board's selection of a DC in a particular

case only if such selection is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 38 U.S.C. 7261(a)(

3)(A); Fenderson v. West, 12 Vet.App. 119, 125 (1999); Butts v. Brown, 5

Vet.App. 532, 538-39 (1993) (en banc) ("VA and the BVA possess specialized

expertise in identifying and assessing the medical nature of a claimed

condition, and their application of a particular [DC] to a particular

condition is due . . . deference."). Although the Board's selection of

the proper DC is entitled to deference under the "arbitrary and capricious"

standard of review, the Board is nevertheless obligated to provide an

adequate statement of reasons or bases explaining why it selected a

particular DC by analogy over another possible analogous DC. See

Suttmann v. Brown, 5 Vet.App. 127, 133 (1993); see also Butts, 5 Vet.App.

at 538.

The appellant's contentions are unavailing in light of the evidence

of record and the plain language of 38 U.S.C. 1117 and 38 C.F.R. 3.317

. A claimant seeking service connection under section 1117 must provide "

objective indications of chronic disability' includ[ing] both 'signs' in

the medical sense of 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)(3). The medical

examinations of February and March 1995 and September 1996 indicate that

the appellant has full range of motion in his joints and there is no

objective medical evidence, or nonmedical evidence capable of

independent verification, of organic pathology in his joints. Accordingly,

the appellant does not "exhibit objective indications of a qualifying

chronic disability," nor has he alleged that such indications exist,

sufficient to satisfy the requirements of section 3.317(a)(3) and

demonstrate entitlement to compensation pursuant to 38 U.S.C. 1117.

In addition, the Board did not err in evaluating the appellant's

arthralgia by analogy to degenerative arthritis and fibromyalgia. The

appellant has consistently described his condition as pain in multiple

joints and there is no evidence suggested by the appellant that his

condition is

neurogenic in origin. Indeed, the appellant expressly avoids any

suggestion that his condition is anything other than organic in nature and

essentially agrees with the Board's reliance on these analogous DCs.

Appellant's Br. at 9-10. In the absence of a diagnosis consistent with a

neurogenic origin for his disability, the appellant would have the Board

engage in the same type of conjectural use of analogous ratings that is

expressly prohibited by 38 C.F.R. 4.20 (2003): "Conjectural analogies

will be avoided, as will the use of analogous ratings for conditions of

doubtful diagnosis, or for those not fully supported by clinical or

laboratory findings." The appellant has not demonstrated that the DCs

relied on by the Board in its decision were "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance of law." The Court

will affirm the Board decision with respect to the appellant's claim of

service connection for multiple arthralgias.

III. CONCLUSION

On consideration of the record on appeal and the pleadings, the July

5, 2002, Board decision is AFFIRMED IN PART with respect to its denial of

entitlement to service connection for arthralgia of multiple joints,

claimed as a chronic disability resulting from an undiagnosed illness, and

VACATED and REMANDED IN PART for readjudication of the claim for service

connection for a left elbow disability.

DATED: September 23, 2004

Copies to:

Samuel M. Tumey, Esq.

P.O. Box 113

Liberty, MS 39645

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

[betrayed]

Thanks, I dont know I will have to read it again. Bottom line to my case is I claimed it on my very first claim, listed it as chronic pain. My very first C&P I was diagnosed with chronic pain. Then I had a C&P for depression and the doctor diagnosed me with serious depression secondary to serious pain syndrome. The VA has never acknowledged the words chronic pain, they skipped over every claim, NOD, Form 9 as if those words were written with invisible ink. I went to a DRO hearing which when I got there they talked me into letting it go as a informal hearing. But before the hearing I had a meeting with the service center manager (arranged by my congressman and accompanied by a staffer) and at that meeting I complained about the sloppy half arse work the VA had done, I complained about all the errors, administrative and technical (not in compliance with directives) and I asked why my claim for chronic pain had been ignored. Well they blew smoke and held up mirrors and told me I had a rating for depression and i was only allowed to have one mental rating. I accepted that answer, and a month later I realized they hoodwinked me. I did not get my depression rating for almost two years into this. Therefore I should have had my chronic pain rating from day one at what ever %, then when I got my depression rating it would have taken over if the % was higher than the chronic pain %.

But with my last DRO review they retro dated everything back to day one, or almost everything. The day after I retired I was 80%..........so if I had gotten the chronic pain rating on top of the 80% I would have busted 100%.

Thats the reason I am fighting this with such vigor, I want to bust 100% at day one, which will get me about 50K in back pay. I dont know how or why they have ignored the chronic pain but I am not going to let them get away with it, and if it has to go to BVA then so be it and I know it wont be ignored at BVA. But I have asked for another DRO hearing which will be formal, and I will fight for the 9422 rating and I will not be distracted by smoke and mirrors this time.

[allan]

Hello Betrayed,

the claims I've submitted for depression & chronic pain have been given the same treatment. They don't exist according to the VARO or BVA level.

Health care for chronic pain hasn't been much better. The only long acting medication they will prescribe is Methadone. They say take it or take nothing. When I say I've tried it & didn't have a good reaction to it, with the other meds I have to take. Then they put in the records, that "the patient refuses", long acting pain meds.

The only way I can recieve any kind of consistant pain relief, is to use what I know that works. I've had chronic pain during active duty up until today. I've tried most everything that is available. When you find something that takes away a miserable existance for a life, why would you refuse it?

I've had several issues filed by me or my reps over the decades, as I discovered the evidence in records or through medical science.

Many of these yrs I tried putting things together, with undiagnosed & untreated illnesses, such as TBI, MS, Hypertension, Ischemia, Fibromyalgia, Hypothyroidism, PTSD/Depression, ashma, COAD, Spinal Stenosis/Spondylosis, to list a few.

I have alot of days where nothing works right. Mind, body or spirit, so it really plays with your mind when some types of pain go untreated, or your medications are suddenlly withheld or delayed.

I use medicare for a private Dr & pay a couple hundred a month for long acting pain meds, since the VAMC refuses to supply them. I can now go to any non-VA pharmacy every month & make sure my prescription is continued on time, EACH month. It feels much better to not have to go through sudden medication withdrawals so often.

I'm also not fond of health care personel, that laugh at you about a week or two into withdrawals & say, "what's wrong with Methadone, your going to get hooked on something"?

My thoughts are, why die from something that provides bad results with combining my other meds?

[john999]

Allan

The VA gives me the slow acting morphine. It makes me feel like crap and constipates the hell out of me but it does work on the pain. It is about 50/50 as far as cost vs benefit. I am disgusted with pain management because about all I have accomplised is to get dependent on percoset and morphine. If this is the best they can do I really wonder how it would be if my pain got worse? I took the methadone as well and it was about as bad as the morphine. The concept of slow acting pain killer is good, but the reality is pretty awful. It makes me depressed seriously as well. If I mention that they will cut me off, so I take what they give me, but according to what I can stand. Private pain management is not much better. The private guys want to do procedures on me all the time to make money. Pain management has a very long way to go. If you have cancer then they seem to have ways to deal with very serous pain, but to help someone with pain that simply destroys your quality of life they don't seem to be able to do without ruining something else.