Citation Nr: 0900076 Decision Date: 01/02/09 Archive Date: 01/14/09 DOCKET NO. 08-10 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for fibromyalgia, claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from November 1989 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran and his spouse presented sworn testimony in support of his appeal during an August 2008 hearing at the RO before the undersigned acting Veterans Law Judge. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran alleges he has fibromyalgia as a manifestation of undiagnosed illness resulting from his period of active duty service. He is a Persian Gulf War veteran, having served in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(e); 38 C.F.R. § 3.317(d). For Persian Gulf War veterans, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become manifest either during active military 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 December 31, 2011, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(b). For purposes of section 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) 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; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). In addition, under section 3.317, 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. 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). 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). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, there is no requirement that there be competent evidence of a nexus (i.e., link) between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. Id. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). As the Court also acknowledged in Gutierrez, however, this presumption is rebuttable if there is affirmative evidence that an undiagnosed illness was not incurred in service or was instead caused by a supervening condition. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known clinical diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA is not generally authorized to grant service connection for symptoms alone, without an identified basis for those symptoms. For example, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The notable exception to this rule is 38 C.F.R. § 3.317, which permits, in some circumstances, service connection of signs or symptoms that are objective indications of chronic disability, even though such disability is due to undiagnosed illness. What is important is whether a symptom is a manifestation of a syndrome that (1) is a clinical diagnosis accepted by VA and (2) is shown by the evidence to be the result of service. If so, service connection may be granted under 38 C.F.R. § 3.303(d). If not, service connection must be considered under 38 C.F.R. § 3.317. In the latter case, service connection may not be granted if the symptom is a manifestation of a disability attributable to a "known clinical diagnosis." The record reflects that the veteran has not been afforded a Persian Gulf War protocol examination. Given the current level of symptoms experienced by the veteran as described during his August 2008 Travel Board hearing, the Board finds that the veteran should be scheduled for a protocol examination that addresses the unique constellation of symptoms incident to fibromyalgia and determines whether such diagnosis is appropriate with regard to the veteran. Accordingly, the case is REMANDED for the following action: 1. Ask the veteran to identify all medical providers who have treated him for his claimed disorder since June 1997. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Schedule the veteran for a Persian Gulf War protocol examination. The claims file, including a complete copy of this Remand, must be made available to the physician(s) designated to examine the veteran for his pertinent medical and other history. The report of the examination(s) should include discussion of his documented medical history and assertions. All appropriate tests and studies and/or consultation(s) should be accomplished (with all findings made available to the examiner(s) prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct a comprehensive medical evaluation and provide details about the onset, frequency, duration, and severity of the veteran's symptoms. a. In particular, the designated examiner(s) should specifically state whether any of the veteran's complaints or symptoms are attributable to a known clinical diagnosis. This also includes indicating whether these complaints and symptoms are manifestations of already service-connected disabilities (e.g., post traumatic dysfunction of the left shoulder and post traumatic and post operative dysfunction of the right wrist). If there is a known clinical diagnosis that can be medically explained, the examiner should expressly indicate these underlying diagnoses. The examiner should also offer an opinion as to whether it is at least as likely as not (meaning 50 percent or more probable) that the diagnosed disability is related to the veteran's military service, to include the 1991 automobile accident. b. If, on the other hand, the veteran suffers from any signs or symptoms that are determined not to be associated with a known clinical diagnosis, the examiner should indicate whether any such condition meets the regulatory definition of either an undiagnosed illness or a medically unexplained chronic multisymptom illness. A complete rationale for all opinions expressed must be provided. If the physician is unable to render any opinion sought, it should be so indicated on the record and the reasons therefor should be noted. The factors upon which any medical opinion is based must be set forth for the record. 3. After ensuring the proper completion of this and any other necessary development, the RO should readjudicate the issue on appeal. If the disposition remains unfavorable, the RO should furnish the veteran and his representative with a supplemental statement of the case and afford them the applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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. 2008). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).