Citation Nr: 0701810 Decision Date: 01/23/07 Archive Date: 01/31/07 DOCKET NO. 04-04 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for fatigue. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The veteran served on active duty from September 1989 to December 1996. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Waco, Texas, VA Regional Office (RO). By rating decision, dated in March 2005, the agency of original jurisdiction (AOJ) granted service connection for memory loss. This represents a full grant of the benefits sought. In a January 2005 rating decision, an effective date of March 20, 2002 for a 30 percent evaluation for eczemoid dermatitis was assigned. This, too, represents a full grant of the benefits sought, as reflected by a February 2004 VA Form 9. The veteran was afforded a travel Board hearing before an Acting Veterans Law Judge in September 2006. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The veteran exhibited objective indications of chronic disability resulting from illness manifested by chronic fatigue. 3. The veteran's chronic fatigue was not attributed to any known clinical diagnosis. CONCLUSION OF LAW The veteran served in the Persian Gulf War and has a current undiagnosed illness manifested by chronic fatigue. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2005); 38 C.F.R. § 3.317 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that any defect with regard to VCAA is harmless, as the evidence supports a grant of service connection for chronic fatigue due to an undiagnosed illness. Any disagreement as to the effective date or evaluation assigned can be addressed after the AOJ implements the grant of service connection. VA may pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest--(A) during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or (B) to a degree of 10 percent or more during the presumptive period prescribed under subsection (b). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a presumption of service-connection. The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. "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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. The term "Persian Gulf veteran" means a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include the following: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2005); 38 C.F.R. § 3.317 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Manifestations of undiagnosed illness are presumed service connected unless there is affirmative evidence that an undiagnosed illness was instead caused by a supervening condition. Guiterrez v. Principi, 19 Vet. App. 1 (2004). Such facts are not established in this case. Furthermore, the veteran was not required to provide evidence linking his current condition to an event during service. Id. At 9-10. Lastly, objective medical evidence is not required for an award of service connection. 38 U.S.C.A. § 1117. Rather, only competent evidence is required, including non-medical indicators or signs perceptible to an examining physician. In this case, the examiners, to include the May 2002 and March 2004 examiners, as well as the April 2004 examiner, entered a diagnosis of fatigue. The Board notes that under 38 C.F.R. § 3.317(a) (3), objective indications of chronic disability include signs and/or non-medical indicators. The Board notes that the veteran is service-connected for memory loss due to an undiagnosed illness as a result of service in the Persian Gulf. The veteran's service records reflect service in the Southwest Asia theater of operations during the Persian Gulf War. He has asserted that shortly before separation, he began having fatigue, which has not subsided. Transcript at p. 7. On Persian Gulf Registry report VA examination, dated in May 2002, the veteran was noted to be employed as a truck driver. The diagnosis was fatigue. On VA examination for fibromyalgia in April 2004, he complained of increasing fatigue since 1995. The April 2004 VA fibromyalgia examination report notes the examiner reviewed the claims file. The diagnosis was fatigue. The report notes that the veteran worked 3/4 time and attended school 36 hours per week. The examiner attributed fatigue to the veteran's workload. In this case, the Board finds that veteran's credible testimony, together with the lack of a diagnosis for his chronic fatigue, supports a finding that he has an undiagnosed illness manifested by chronic fatigue. The Board notes that the veteran has consistently been diagnosed with fatigue. Fatigue, rather than chronic fatigue syndrome, is specifically listed under 38 C.F.R. § 3.317(b)(1). Furthermore, while the April 2004 VA examiner attributed fatigue to the veteran's workload, the March 2004 VA examination report notes he had been working as a patient care technician and attending school only for the previous nine months. The Board notes the May 2002 VA examination report reflects a diagnosis of fatigue prior to having that school and work schedule, at which time he was a truck driver. Thus, the April 2004 report neither establishes a clinical diagnosis or a supervening condition in this case. The Board finds the veteran's testimony that fatigue had an onset in service to be credible. Therefore, the grant is for direct service connection rather than on a presumptive basis, obviating the need to address the time at which fatigue became 10 percent or more disabling. The evidence is in favor of the claim. Consequently, the benefits sought on appeal are granted. ORDER Entitlement to service connection for chronic fatigue due to an undiagnosed illness is granted. ____________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs