11-21 199, 11-21 199

Background

Veteran served Aug 1999–Sep 2009 and filed claims arising from service and post-service medical history; appeal from March 2010 RO decision now before Board (jurisdiction Waco, TX).
Board recharacterized claims for respiratory and gynecological conditions to include related diagnoses (sinusitis, allergic rhinitis; endometriosis, fibroids, etc.).
November 2008 pre-discharge exam recorded chronic fatigue complaints but no confirmed diagnosis; April 2009 (while still on active duty) the Veteran was diagnosed with chronic fatigue syndrome; claim filed July 2009.
Post-service records include various diagnoses and complaints (chest pain/rib fracture residuals, sinusitis/rhinitis, flat feet, gynecological surgeries) but many relevant VA/private records appear outstanding.
Board granted service connection for chronic fatigue syndrome based on in-service diagnosis and contemporaneous claim.
Remaining claims (increased ratings and multiple service-connection issues) were remanded for development: obtain outstanding VA/private records and schedule multiple VA examinations (respiratory, right foot pes planus, gynecological conditions, rib injury residuals, and updated exams for service-connected spine, hip, shoulder, left foot).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Service connection for chronic fatigue syndrome	CFS manifested in service (fatigue complaints 2006; diagnosis Apr 2009 while on active duty); claim filed Jul 2009	RO previously denied for lack of current disability	Granted — in-service diagnosis and contemporaneous claim satisfy current-disability requirement; service connection established
Service connection for respiratory condition (allergic rhinitis/sinusitis)	In-service URIs/allergic rhinitis and later VA records support nexus	Pre-discharge exam found no current diagnosis; RO denied	Remanded for development and VA exam to opine on nexus and current diagnosis
Service connection for gynecological conditions (menorrhagia, endometriosis, fibroids, etc.)	In-service menorrhagia/dysmenorrhea and subsequent surgeries support nexus	Pre-discharge exam found no current diagnosis; RO denied	Remanded to obtain private records (hysterectomy, endometriosis) and obtain VA exam to adjudicate nexus
Service connection for residuals of rib fracture (chest pain)	Post-service complaints and in-service costochondritis/Tietze’s support service connection	Pre-discharge exam found no current diagnosis; RO denied	Remanded for VA exam and records development
Service connection for right foot pes planus	In-service findings and later complaints/diagnoses	Pre-discharge exam found no current diagnosis; RO denied	Remanded for records and VA exam to determine current status and nexus
Increased ratings for spine, hip, shoulder, left foot	Veteran asserts worsening since last VA exams (last in 2008); recent records suggest progression (e.g., radiculopathy)	Current ratings based on remote 2008 exams	Remanded for updated VA examinations assessing current severity, ROM, neurological involvement and functional impact

Key Cases Cited

Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of a claim includes reasonably encompassed disabilities)
Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (same principle on claim scope)
Bernard v. Brown, 4 Vet. App. 384 (1993) (favorable Board decisions and VCAA compliance)
Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board need not discuss every piece of evidence)
Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must analyze probative value of evidence and explain rejections)
Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements for service connection)
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (service-connection principles)
Pond v. West, 12 Vet. App. 341 (1999) (service-connection principles)
McClain v. Nicholson, 21 Vet. App. 319 (2007) (a ‘‘current disability’’ may exist during the pendency of a claim even if it later resolves)
Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (diagnosis proximate to claim can satisfy current-disability requirement)
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt/evidence weighing)
McLendon v. Nicholson, 20 Vet. App. 79 (2006) (threshold for ordering VA examination)
Lind v. Principi, 3 Vet. App. 493 (1992) (duty to obtain private records when on notice)
Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (duty to obtain records)
Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA records constructive possession)
Snuffer v. Gober, 10 Vet. App. 400 (1997) (entitlement to new exam when evidence shows possible worsening)
Caffrey v. Brown, 6 Vet. App. 377 (1994) (older exam may be too remote to support decision)
Stegall v. West, 11 Vet. App. 268 (1998) (VA must comply with remand directives)
Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran's right to submit additional evidence on remand)