Citation Nr: 0311614 Decision Date: 06/05/03 Archive Date: 06/10/03 DOCKET NO. 99-14 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to service connection for major depression, chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome and urticaria. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty in the U.S. Navy from December 1990 to April 1991. She was recalled to active duty in support of Operation Desert Shield/Storm from January 8, 1991 to April 5, 1991. She had periods of unverified active duty for training (ACDUTRA). The Board of Veterans' Appeals (Board) notes that the issues on appeal arose from a December 1998 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In November 2000 this case was remanded by the Board to the RO to provide the veteran a personal hearing before a hearing officer. She attended a hearing before a hearing officer at the RO in June 2001. The hearing transcript is on file. The case was returned to the Board for appellate consideration. The issues of entitlement to service connection for major depression and urticaria are addressed in the remand portion of the decision. In August 2002 the Board granted service-connection for a chronic headache disability. The Board undertook additional development of the issues of entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)). A December 2002 VA general medical examination report with pertinent opinions was obtained with respect to the claims of entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. In Disabled American Veterans, et al. v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003), the United States Court of Appeals for the Federal Circuit (CAFC) determined that 38 C.F.R. § 19.9(a)(2) is inconsistent with 38 U.S.C. § 7104(a). The CAFC invalidated 38 C.F.R. § 19.9(a)(2) because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration. The CAFC held that this is contrary to the requirement of 38 U.S.C. § 7104(a). The CAFC also determined that 38 C.F.R. § 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," is contrary to 38 U.S.C. § 5103(b). The CAFC invalidated 38 C.F.R. § 19.9(a)(2)(ii), which requires the Board "to provide the notice required by 38 U.S.C. [§] 5103(a) " and "not less than 30 days to respond to the notice," because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. The Board may proceed with appellate consideration of the issue of entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, in light of the favorable decision cited below. See 38 C.F.R. § 20.1304; Bernard v. Brown, 4 Vet. App. 384 (1993). In reviewing the record the Board notes that the December 2002 VA general medical examination report raised the implied issue of entitlement to service connection for allergic dermatitis of the nose related to the veteran's Persian Gulf service. As this issue has been neither procedurally prepared nor certified for appellate review, it is referred to the RO for initial consideration and appropriate adjudicative action. Godfrey v. Brown. 7 Vet. App. 398 (1995). FINDING OF FACT The probative and competent medical evidence establishes a link between chronic fatigue syndrome, fibromyalgia and irritable bowel syndrome, and the veteran's service in the Persian Gulf. CONCLUSION OF LAW Chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303(b)(d), (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran served on active duty in the U.S. Navy from December 1990 to April 1991. She was recalled to active duty in support of Operation Desert Shield/Storm from January 8, 1991 to April 5, 1991. She had periods of unverified active duty for training(ACTDUTRA). Her awards and decorations include the Southeast Asia Service Campaign Medal. The veteran's available service medical records are essentially silent for chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. The voluminous postservice medical records essentially refer to symptoms diagnosed as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, from approximately the mid 1990's. She attended a hearing before a hearing officer at the RO in June 2001. The hearing transcript is on file. She claimed that she developed chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome upon her return from active duty in the Persian Gulf. A December 2002 VA general medical examination report shows the medical examiner reviewed the veteran's claims file. Following a comprehensive examination and review of the claims file the medical examiner essentially opined that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are as likely as not related to the veteran's active service in the Persian Gulf. Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002). The United States Court of Appeals for Veterans Claims (CAVC) has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where chronic disease is shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2002). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury of disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154. When, after consideration of all the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 C.F.R. §§ 3.102, 4.3 (2002). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2002). Analysis Preliminary Matter: Duty to Assist The Board initially notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999) withdrawn sub nom. Morton v. Gober , 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified as 38 C.F.R. § 3.159). Where the law and regulations change while a case is pending, the version more favorable to the veteran applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Board is of the opinion that the new duty to assist law has expanded VA's duty to assist (e.g., by providing specific provisions requiring notice of what is required to substantiate a claim), and is therefore more favorable to the veteran. Therefore, the amended duty to assist law applies. Id. During the pendency of the veteran's claim, the United States Court of Appeals for the Federal Circuit (CAFC) overturned and vacated some parts of the development regulations. See Disabled American Veterans et al. v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). A preliminary review of the record shows that VA has made reasonable efforts to obtain evidence necessary to substantiate the veteran's claim. In the case at hand, the Board is satisfied that the duty to notify and the duty to assist have been met to the extent necessary under the new law. Importantly, any deficiencies which may exist in VA 's duties to notify and to assist constitute harmless error in light of the full grant of benefits as discussed below. Service connection The first of the three requirements to prevail in a claim of service connection is that the veteran have the claimed disability. See Hickson, supra. The evidentiary record shows she has been diagnosed with chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. The next requirement is that there be medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury. The veteran maintains that upon her return from the Persian Gulf she developed symptoms later diagnosed as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. Most importantly of all, the third requirement for prevailing on a claim of service connection is that there be medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson, supra. There is probative and competent medical evidence of record consisting of a December 2002 VA general medical examination report with medical opinion supporting an etiologic link or nexus between the onset of chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome and the veteran's active service in the Persian Gulf, thereby warranting entitlement to a grant of service connection. 38 U.S.C.A. §§ 1110, 1154; 38 C.F.R. § 3.303; Hickson, supra. ORDER Entitlement to service-connection for chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome is granted. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the CAVC 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 2002) (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 CAVC. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. In July 2002 the Board undertook additional development on the issues of entitlement to service connection for major depression and urticaria pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). This has been completed. In Disabled American Veterans, et al. v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003), the United States Court of Appeals for the Federal Circuit (CAFC) determined that 38 C.F.R. § 19.9(a)(2) is inconsistent with 38 U.S.C. § 7104(a). The CAFC invalidated 38 C.F.R. § 19.9(a)(2) because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration. The CAFC held that this is contrary to the requirement of 38 U.S.C. § 7104(a). The CAFC also determined that 38 C.F.R. § 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," is contrary to 38 U.S.C. § 5103(b). The CAFC invalidated 38 C.F.R. § 19.9(a)(2)(ii), which requires the Board "to provide the notice required by 38 U.S.C. [§] 5103(a) " and "not less than 30 days to respond to the notice," because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. In accordance with the above reported development, the Board obtained December 2002 VA psychiatric and general medical examination reports with pertinent opinions. This evidence has not been considered by the RO and the veteran has not waived initial RO consideration of this evidence. 38 C.F.R. § 20.1304. The CAVC has held that section 5103(a), as amended by the VCAA of 2000 and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). In this case, the RO's failure to issue a development letter consistent with the notice requirements of the VCAA amounts to a substantial oversight indicative of minimal RO development and accordingly compels remand. The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should furnish the appellant a development letter consistent with the notice requirements of the VCAA, as clarified by Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO should then conduct any necessary development brought about by the appellant's response. 3. The RO should review the December 2002 VA psychiatric and general medical examination reports with pertinent opinions to ensure that they are responsive to and in complete compliance with the directives of the Board's development and if they are not, the RO should implement corrective procedures, to include scheduling of additional VA examination and securing of additional medical opinion if deemed warranted. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the RO should review the claims file to ensure that any notification and development action required by the VCAA of 2000 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (38 U.S.C.A. §§ 5102, 5103, 5103A and 5107) are fully complied with and satisfied. 4. After undertaking any action deemed essential in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for major depression and urticaria with consideration of all evidence received following the July 2001 supplemental statement of the case (SSOC). If the benefits requested on appeal are not granted to the veteran's satisfaction, the RO should issue a SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertaining to the issue currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the RO; however, the veteran is hereby notified that failure without good cause shown to report for any scheduled VA examination(s) may adversely affect the outcome of her claim for service connection. 38 C.F.R. § 3.655 (2002).. ______________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.