UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 03-2159

MICHAEL A. STANKEVICH, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued November 7, 2005 Decided January 3, 2006 )

Robert C. Rhodes of Chapin, South Carolina, was on the brief for the appellant.

Kerry J. Loring, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief for the appellee.

Before KASOLD, DAVIS, and SCHOELEN, Judges.

KASOLD, Judge: Persian Gulf war veteran Michael A. Stankevich appeals through counsel

that part of an October 23, 2003, decision of the Board of Veterans' Appeals (Board) that denied

entitlement to service connection for chronic muscle and joint pains as manifestations of an

undiagnosed illness. For the reasons set forth below, that part of the Board's decision on appeal will

be modified in part, set aside in part, and the matter remanded for readjudication.

I. BACKGROUND

Mr. Stankevich served in the U.S. Army from September 1987 to September 1991, including

service in the Persian Gulf war. Record (R.) at 2. In May 1995, he filed a claim for disability

compensation benefits on the basis of having "Gulf War Syndrome" and residuals thereof. R. at 65.

He complained of pain throughout his body, including, inter alia, both his left and right shoulders,

elbows, wrists, hands, hips, knees, lower legs, and ankles, as well as his ribs and upper and lower
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back. R. at 72-73. A VA nurse practitioner diagnosed Mr. Stankevich as having chronic generalized

muscle strain that was "very likely" due to his profession, which "consisted of bending over and

lifting the heads of cars and trucks, working a wrench which took a lot of pressure and torque to

remove nuts and bolts." R. 244-45. A VA physician noted that Mr. Stankevich's pain was

"generalized aching with exertions and relief with rest" and that the pain "does not limit joint

movement in any particular joint." R. at 248-49. The physician determined that there were "no

positive findings and the history is generalized, but no laboratory work is found to explain the course

of events coming on two years after military service. The diagnosis cannot be made beyond multiple

joint pain and fatigue by history of unknown etiology." R. at 249. 

Although a VA regional office denied Mr. Stankevich's claim on the basis that his disability

was "determined to result from a known clinical diagnosis of chronic, generalized muscle strain,

which neither occurred in nor was caused or aggravated by service" (R. at 267), on appeal the Board

found that the "record does not provide a convincing basis for either acceptance or rejection of either

medical opinion in this case as to the question of whether [Mr. Stankevich's] chronic muscle/joint

pains are manifestations of an undiagnosed illness." R. at 13. The Board then stated:

However, even if reasonable doubt is resolved in the veteran's favor on this point, the

veteran's symptoms are not shown to be ratable at 10 percent under any provision of

the VA rating schedule. Since there is no code that applies specifically to generalized

muscle/joint pains, a rating by analogy would be required, and the only reasonably

analogous code would appear to be Diagnostic Code [(DC)] 5003 pertaining to

arthritis. 38 C.F.R. § 4.71a, [Diagnostic] Code 5003 (2002). Under that code,

ratings are assigned on the basis of limitation of motion of the joints in which the

presence of arthritis is shown by X-rays. Where limitation of motion is not shown,

a 10 percent rating can be assigned when there is X-ray evidence of involvement of

two or more major joints or minor joint groups. The veteran does not have limitation

of motion of any joint, and the Board is unable to find that a provision requiring

X-ray findings alone as the basis for assigning a rating is truly analogous for the

purpose of assigning a rating to satisfy the undiagnosed illness presumption.

R. at 13-14. This appeal followed.
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II. ANALYSIS

A. Presumptive Service Connection 

Service connection may be granted on a presumptive basisto a Persian Gulf war veteran with

a qualifying chronic disability resulting from an undiagnosed illness that became manifest to a degree

of 10% or more no later than December 31, 2006. See 38 U.S.C. § 1117(a); 38 C.F.R.

§ 3.317(a)(1)(i) (2005). A qualifying chronic disability may result from an undiagnosed illness that

cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory

tests. See 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2). For purposes of establishing a qualifying

chronic disability, an undiagnosed illness may be manifested bymuscle or joint pain. See 38 U.S.C.

§ 1117(g)(4)-(5); 38 C.F.R. § 3.317(b)(4)-(5). To determine whether the undiagnosed illness has

manifested to a degree of 10% or more, the veteran's condition must be rated analogously to a

disease or injury in which the functions affected, anatomical localization, or symptomatology are

similar. See 38 C.F.R. § 3.317(a)(5). 

B. Board's Selection of Diagnostic Code 5003

 Although the Court reviews the selection of a DC under the arbitrary-and-capricious standard

of review, see Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (selection of a DC is a question

of application of law to facts and is subject to Court review under the arbitrary-and-capricious

standard), the Board is nevertheless required to provide an adequate statement of reasons or bases

for its selection, see 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Suttmann

v. Brown, 5 Vet.App. 127, 133 (1993). In this instance, the Board failed to adequately explain its

selection of DC 5003 and, further, its application of DC 5003 rendered its selection arbitrary and

capricious. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold unlawful decisions by the Board that

are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").

The Board's statement that "the only reasonably analogous code would appear to be

Diagnostic Code 5003 pertaining to arthritis," is the only basis for its selection of DC 5003 for rating

purposes. The Board provided no analysis to support its conclusion and failed to explain why other

DCs were not reasonably analogous. Although the Court cannot substitute its view of the

appropriate DC for that of the Board, we note that fibromyalgia, which involves "widespread

musculoskeletal pain and tender points" and is specifically named as a condition for which
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presumptive service connection may be granted, appears to be at least as equally analogous as

arthritis to Mr. Stankevich's condition. See 38 U.S.C. § 1117(a)(2)(B); 38 C.F.R.

§§ 3.317(a)(2)(i)(B)(2), 4.71a, DC 5025 (2005); see also Schafrath v. Derwinski, 1 Vet.App. 589,

593 (1991) (Board is required to consider all evidence of record and to consider, and discuss in its

decision, all potentially applicable provisions of law and regulation). In any event, the Board must

provide an adequate statement of reasons or bases for its selection of a DC. See Allday and Suttman,

both supra.

Moreover, DC 5003 provides for a 10% disability rating only if there is x-ray evidence of

arthritis. Although the Board noted that "a provision requiring x-ray findings alone as the basis for

assigning a rating" was not "truly analogous" for purposes of section 1117, the Board nevertheless

proceeded to apply it. R. at 13-14. The Board found that Mr. Stankevich had no limitation of

motion, and implicitly found no evidence of multiple-joint arthritis, by x-ray or otherwise, and on

that basis determined that Mr. Stankevich was not entitled to a 10% disability rating. Id. Absent a

10% disability rating, Mr. Stankevich could not be granted presumptive service connection under

section 1117.

The very essence of an undiagnosed illness is that there is no diagnosis. The function

affected, anatomical localization, or symptomatology of an undiagnosed illness cannot be analogous

if the Board applies that rating criteria to require objective evidence of a diagnosed disability (here,

x-ray evidence of arthritis). See Gutierrez v. Principi, 19 Vet.App. 1, 9 (2004) ("Objective medical

evidence is not required for an award of service connection under section 1117."). The Court

concludes that the Board's manner of applying DC 5003 in this case – by requiring a diagnosis of

arthritis in order to grant a 10% disability rating where a diagnosis cannot be had – is arbitrary and

capricious because the analogy is, at best, illusory.

C. The Evidence Does Not Preponderate Against 

a Finding of an Undiagnosed Condition

The Secretary argues that the Board made no determination as to whether Mr. Stankevich had

an undiagnosed condition. Although the specific words expressing such a determination were not

used by the Board, it nevertheless assessed the evidence and found no basis for accepting or rejecting

either of the conflicting medical opinions. As a matter of law, when the evidence does not
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preponderate one way or the other, it sits in relative equipoise, see Gilbert v. Derwinski, 1 Vet.App.

49, 54 (1990) ("a veteran need only demonstrate that there is an 'approximate balance of positive and

negative evidence' in order to prevail"), and the benefit of the doubt must go to the veteran, see Ortiz

v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) ("benefit of the doubt rule may be viewed as

shifting the 'risk of nonpersuasion' onto the VA to prove that the veteran is not entitled to benefits");

Robinette v. Brown, 8 Vet.App. 69, 76 (1995) ("the unique evidentiary burdens in the VA

adjudication system . . . permit a merits disallowance onlywhere the evidence preponderates against

the claim"); Gilbert, 1 Vet.App. at 54 ("the preponderance of the evidence must be against the claim

for benefits to be denied");see also Padgett v. Nicholson, 19 Vet.App. 133, 146-47 (2005) (en banc),

withdrawn on other grounds, 19 Vet.App. 334 (2005). Accordingly, the Board's decision will be

modified in part to explicitly state the Board's finding that Mr. Stankevich's muscle and joint pains

are manifestations of an undiagnosed illness.

III. CONCLUSION

Upon consideration of the foregoing, that part of the Board's decision addressing whether Mr.

Stankevich's muscle and joint pains are manifestations of an undiagnosed illness is MODIFIED to

include an explicit statement of the Board finding that Mr. Stankevich's muscle and joint pains are

manifestations of an undiagnosed illness. The remainder of the Board's decision that denied service

connection for chronic muscle and joint pains, including as manifestations of an undiagnosed illness,

is SET ASIDE. The matter on appeal is REMANDED for readjudication consistent with this

opinion. See 38 U.S.C. § 7252(a). On remand, Mr. Stankevich may present additional evidence and

argument in support of the matters remanded, and the Board must consider any evidence and

argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects that

the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. § 7112.

MODIFIED IN PART, SET ASIDE IN PART, and REMANDED.