Citation Nr: 0812264 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-32 373A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome. 2. Entitlement to service connection for crusting scab, left nostril. 3. Entitlement to service connection for disability manifested by sleep disturbance. 4. Entitlement to service connection for left lower extremity, neurological disability. 5. Entitlement to service connection for right lower extremity, neurological disability. 6. Entitlement to a disability rating in excess of 10 percent for lumbar strain. 7. Entitlement to a disability rating in excess of 10 percent for residuals of a right ankle fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran had active military service from November 1986 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Chicago, Illinois, regional office (RO). The claims folder was subsequently transferred to No. Little Rock, Arkansas. The veteran testified before the undersigned in January 2008. A copy of the transcript was included in the record. The veteran submitted additional evidence subsequent to the last supplemental statement of the case, along with a waiver of initial consideration by the RO. The issues of entitlement to service connection for disability manifested by sleep disturbance, left and right lower extremity, neurological disability, entitlement to a disability rating in excess of 10 percent for lumbar strain, and a disability rating in excess of 10 percent for residuals of a right ankle fracture are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Chronic fatigue syndrome is manifested by symptoms of parasthesias that is controlled by continuous medication. 2. Resolving all doubt in the veteran's favor, crusting scab, left nostril, had its onset in service. CONCLUSIONS OF LAW 1. Chronic fatigue syndrome may be presumed to have been incurred in the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 1155, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). 2. Crusting scab, left nostril, had its onset in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is claiming service connection for chronic fatigue syndrome and crusting scab, left nostril. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). Service connection may also 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) (2007). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Chronic Fatigue Syndrome The veteran's Form DD 214 reflects service in the Southwest Asia and his awards include the Southwest Asia Service Medal and Kuwait Liberation Medal (SA). Therefore, he is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. Because the veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom 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. 38 C.F.R. § 3.317(a)(2)(ii). "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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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. 38 C.F.R. § 3.317(a)(4). A September 2003 record noted severe fatigue with complaints of being unable to do activities with children and inability to concentrate. The impression was that the veteran fit the criteria for chronic fatigue syndrome. A February 2004 VA record noted complaints of fatigue and loss of energy. He also complained of paresthesias in extremities, which he takes Neurontin 300 mg. twice daily for relief. Neurological evaluation was positive for paresthesias in extremities, improved with Neurontin. The examiner diagnosed chronic fatigue syndrome and recommended to increase Neurontin to 600 mg. for his paresthesias symptoms. Chronic fatigue syndrome is deemed by regulation to be a medically unexplained chronic multisymptom illness, defined by a cluster of signs or symptoms. Resolving all doubt in the veteran's favor, the Board finds that chronic fatigue syndrome may be presumed to have had its onset during active service. Crusting Scab, Left Nostril The service medical records include a Report of Medical Examination in February 1994 that showed excoriated area along left septal wall. Summary of defect indicated left nasal lesion. Clinical record in March 1994 indicated that the veteran complained of a lesion of the left interior nasal area for two years, which frequently bled. Evaluation indicated lesion of the left nostril septum with crusting and occasional bleeding. The diagnosis was septal lesion. Post-service medical records include VA clinical record in October 2003 reflecting that the veteran had a small lesion excised in the past that seemed to form a crust and then bled off and on. Examination of the nose showed a mildly deviated nasal septum to the left side, with scab formation on the nasal septum with mild irritation. No definite lesion was seen, but it was more of scar tissue with scab formation on the nasal septum. Examination of the right side of nasal cavity was within normal limits. The impression was crusting and scab formation on the (left) anterior nasal septum, aggravated by picking the nose. The veteran was advised not to pick the nose and apply antibiotic ointment over the nasal septum or apply Vaseline to cut down the irritation. Resolving all doubt in the veteran's favor, service connection for crusting scab, left nostril, is established. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Treatment and diagnosis of an abnormal crusting scab, left nostril, was shown in service and after service. The Board finds that the current crusting scab, left nostril, had its onset in service, when all doubt is resolved in the veteran's favor. In view of the favorable decision, the Board notes that any Veterans Claims Assistance Act notification deficiency and outstanding development not already conducted by VA represents nothing more than harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for chronic fatigue syndrome is granted. Service connection for crusting scab, left nostril, is granted. REMAND The veteran is claiming service connection for disability manifest by sleep disturbance, neurological disability, left and right lower extremity, and increased ratings for lumbar strain and right ankle disability. VA medical record demonstrate subjective complaints of tingling in both lower extremities. The Board notes that the veteran is currently service-connected for lumbar strain and chronic fatigue syndrome. The issue of whether the tingling in both lower extremities is related to the veteran's service-connected lumbar strain has not been determined. The veteran did not report to a EMG study scheduled for November 2003; however, the veteran testified that his primary physician at VA told him that he did not have to take the study. (T. 17). The veteran testified that he would be willing to report to a new VA examination in the future. (T. 17). Therefore, the issues of service connection for left and right extremity, neurological condition, and increased rating for lumbar strain is remanded for further development. 38 C.F.R. § 3.159. For the service connection claim for sleep disturbance, the nature and extent of this complaint is unclear. The veteran is service-connected for depression and chronic fatigue syndrome. An evaluation is necessary to determine whether the veteran's disability manifested by sleep disturbance is a symptom of the veteran's chronic fatigue syndrome, depression, or is a separate disability. The veteran testified that he would be willing to report to a new VA examination in the future. (T. 17). Therefore, the issue of service connection for disability manifested by sleep disturbance is remanded for further development. 38 C.F.R. § 3.159. For the increased rating claim for residuals of a right ankle fracture, the Board notes that as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Here, the duty to notify was not satisfied under the recent case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, the last VA evaluation of the right ankle was performed in September 2003, over four-and-a-half years ago. The veteran testified that he would be willing to report to a new VA examination in the future. (T. 17). Therefore, the issue of increased rating for right ankle disability is remanded for further development. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO is directed to provide VCAA notice in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) for the claims of entitlement to an increased disability rating for lumbar strain and residuals of a right ankle fracture. Specifically, the notification must: Inform the veteran that, to substantiate a claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life; and Inform the veteran of the specific rating criteria under Diagnostic Code 5271, and the General Rating Formula for Diseases and Injuries of the Spine; and Inform the veteran that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. 2. After completing the above, the RO should schedule the veteran for an examination to determine the nature, extent, and etiology involving the left and right lower extremities, claimed as neurological disability, and the nature and extent of his service-connected lumbar strain and right ankle disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. For any neurological disability in the lower extremities found, the examiner should provide an opinion as to whether it is a distinct disability or a manifestation of the service-connected lumbar strain, and if a distinct disability, whether there is a 50 percent probability or greater that it had its onset in or is otherwise relate to service. The examiner is also requested to note whether the veteran's lumbar spine and right ankle exhibit weakened movement, excess fatigability, or incoordination attributable to the service-connected disability. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the veteran uses his lumbar spine and right ankle repeatedly over a period of time. A complete rationale for any opinion expressed should be included in the examination report. 3. The RO should schedule the veteran for an examination to determine the etiology of any disability manifested by sleep disturbance. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. For any disability exhibited by sleep disturbance found, the examiner should provide an opinion as to whether there is a 50 percent probability or greater that it is related to his active service or his service-connected chronic fatigue syndrome or depression. The examiner should provide a comprehensive report, including a complete rationale for any conclusions reached. 4. Upon completion of the above requested development, the RO should readjudicate the claims of service connection for disability manifested by sleep disturbance, left and right lower extremities, neurological disability, and increased disability ratings for lumbar strain and right ankle disability. All applicable laws and regulations should be considered. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs