Citation Nr: 1509651 Decision Date: 03/09/15 Archive Date: 03/17/15 DOCKET NO. 10-27 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome (CFS). 2. Entitlement to service connection for gastroesophageal reflux disorder (GERD). 3. Entitlement to service connection for a variously diagnosed psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD), and excluding depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.C. Chapman INTRODUCTION The Veteran served on active duty from April 1987 to May 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2008 (PTSD), February 2012 (CFS), and October 2012 (GERD) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). As the record shows psychiatric diagnoses other than PTSD, the claim of service connection for PTSD has been expanded/recharacterized that it is being considered as a claim of service connection for a psychiatric disability, however diagnosed, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Board observes that an exception to this rule is that if there is a final rating decision on a specific psychiatric disability and a current claim seeks service connection for a different diagnosis. Here, an unappealed December 2013 rating decision separately denied service connection for depression. Accordingly, the claim on appeal is characterized to reflect that the instant appeal is limited to a variously diagnosed psychiatric disorder, not including depression. The issue of service connection for a variously diagnosed psychiatric disorder is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. The Veteran had military service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran does not have CFS or a disability manifested by chronic fatigue that is causally or etiologically related to service. 3. GERD was not manifested in service or for many years thereafter, and is not shown to be related to the Veteran's service. CONCLUSIONS OF LAW 1. Service connection for CFS is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2014). 2. Service connection for GERD is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). August 2011, December 2011, and March 2012 correspondence from VA satisfied the duty to notify provisions. The duty to assist has also been met. The Veteran's service treatment records (STRs) and postservice treatment records are associated with the record and he was afforded VA examinations in February 2012 (CFS) and September 2012 (GERD). The Board finds that the reports of these examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examinations were thorough; the examiners expressed familiarity with the record, and the opinions offered include rationales that cite to supporting factual data. The Veteran has not identified any pertinent evidence that is outstanding. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including gastric ulcers) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for gastric ulcers) following discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom 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 multisymptom illness; or 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). 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 pathophysiololgy will not be considered medically unexplained. 38 C.F.R. § 3.317(a). "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). 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. 38 C.F.R. § 3.317(a). A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from Part IV of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs and 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; (13) menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; of if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d). When 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 claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he has CFS and GERD due to his service in Southwest Asia. The Veteran's STRs show complaints and treatment for stomach cramps, nausea, and gastroenteritis. His April 1991 service separation examination is silent for complaints or diagnosis related to the stomach, gastrointestinal tract, and/or fatigue. On separation report of medical history, the Veteran denied frequent indigestion, stomach or intestinal trouble, and frequent trouble sleeping. On April 1992 VA general medical examination, there was no notation of treatment, complaint, or diagnosis related to GERD and fatigue. May and December 2009 VA treatment records show assessments of GERD. On February 2012 VA CFS examination, the examiner noted that the Veteran does not have a diagnosis of CFS. The examiner indicated that the Veteran is claiming fatigue with onset approximately 8 years prior. The Veteran reported problems sleeping including trouble getting to sleep and trouble staying asleep. The examiner then noted that a review of the record showed no impression of CFS and that there was also no VA impression of CFS. The examiner cited the VA problem list which doesn't mention any diagnosis of CFS. The examiner concluded that the Veteran does not have CFS, but that he has other diagnoses that may lead to fatigue, including a chronic psychiatric illness, insomnia, and a fatty liver. The examiner noted that the Veteran's insomnia started at the same time as his fatigue and that it appears that the insomnia is the cause of the fatigue. Further, the examiner stated that the Veteran does have depressive disorder that can cause fatigue. On February 2012 VA Gulf War general medical examination, the examiner noted that the Veteran's subjective reports of knee pain, wrist pain, hand pain, low back pain, left shoulder pain, and migraine headaches do not represent an undiagnosed illness. On September 2012 VA esophageal conditions examination, the examiner noted a diagnosis of GERD since 2009. The Veteran reported that he has had gastrointestinal complaints for 20 years. He reported having nausea, vomiting, and throat soreness that occurred once weekly, but that approximately three years ago, these symptoms began occurring daily. The Veteran reported morning nausea and pyrosis that typically lasts three hours, and that he has vomiting 4-5 times weekly. He also had associated daily abdominal pain. Following an interview and examination of the Veteran, the examiner opined that the Veteran's GERD is not related to his military service. The examiner indicated that the Veteran had episodes of gastroenteritis in service, but that they were of short duration and that gastroenteritis is a transient gastrointestinal infection generally of viral original and is unrelated to GERD. The examiner further stated that the Veteran's symptoms reported on examination are not supported by/do not correspond to the evidence in the medical records. A March 2013 VA treatment record notes a complaint of fatigue. May 2013 and July 2014 VA treatment records note that the Veteran has GERD and that his symptoms are controlled. He denied fatigue. In February 2014, the Veteran submitted a statement indicating that he believes many of his illnesses may be related to service during the Gulf War. On September 2014 VA gulf war general medical examination, the Veteran did not report fatigue. The examiner indicated that there was no evidence of any diagnosed illnesses for which no etiology was established, and that the Veteran did not report any additional signs/symptoms not addressed in the report. The examiner concluded that there is no evidence to show or suggest that the Veteran has an undiagnosed illness, a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. CFS The Board has considered the Veteran's statements describing his fatigue as an independent chronic disability, but finds that his lay statements are outweighed by the medical evidence of record characterizing his fatigue as a manifestation of other disabilities, including depressive disorder, insomnia, and a fatty liver. The Board notes that the Veteran has filed a claim for service connection for depression, which has been denied. He has not appealed. The Board has also considered whether the Veteran meets the criteria for a diagnosis of CFS under 38 C.F.R. § 4.88a. However, the February 2012 VA examiner specifically found that the Veteran did not meet the criteria for a diagnosis of CFS and identified other conditions, including depressive disorder, insomnia, and a fatty liver as the underlying cause of the Veteran's complaints. The Veteran is competent to report observable symptomatology, such as the onset and character of his fatigue, but he does not possess the requisite medical knowledge to diagnose CFS, which VA has determined must meet specific regulatory and medical criteria. See 38 C.F.R. § 4.88a; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, his lay statements regarding CFS are outweighed by the expert medical evidence of record including the opinion of the February 2012 VA examiner. The Board also notes that the Veteran was afforded two VA Gulf War syndrome examinations, and on neither examination did the Veteran report fatigue, nor did the examiners find that the Veteran had fatigue which can be characterized as a medically unexplained chronic multisymptom illness. In sum, while the Veteran has made complaints of fatigue which he argues is attributable to Persian Gulf War service, the competent evidence establishes that the fatigue is a symptom of nonservice-connected disabilities. Further, CFS has not been diagnosed according to VA regulations at any time during this extended appeal. It is not a chronic disability for VA purposes, and absent proof of the existence of the disability being claimed, there can be no valid claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. GERD It is not in dispute that the Veteran has a current diagnosis of GERD. However, GERD was not manifested in service. Instead, the record shows that he was treated for intermittent stomach complaints, including gastroenteritis. Subsequently, on separation report of medical history, the Veteran specifically denied stomach problems and there were no problems related to the stomach noted on separation examination. Further, a September 2012 VA examiner's opinion indicates that it is unlikely that the Veteran's current GERD is related to his gastroenteritis in service, as gastroenteritis is a transient gastrointestinal infection generally of viral original and is unrelated to GERD. The examiner specifically cited to the factual record. Considering the above, service connection for GERD on the basis that it became manifest in service is not warranted. The preponderance of the evidence is also against a finding that service connection for gastric ulcers, as a chronic disability under 38 C.F.R. § 3.309(a), is warranted on a presumptive basis. The record does not show, and the Veteran does not contend, that he has gastric ulcers, or that such were diagnosed within the first post-service year. Therefore, presumptive service connection for gastric ulcers as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Board has also considered whether service connection is warranted based on continuity of symptomatology since service, but finds that it is not. See 38 C.F.R. § 3.303(b). To the extent that the Veteran may be alleging that his GERD began in service and persisted, such allegation is not credible. It is self-serving and is contradicted by more probative contemporaneous medical evidence. Significantly, the Veteran himself denied having frequent indigestion, stomach or intestinal trouble on separation from service. Thus, the preponderance of the evidence is against a finding of continuity of symptomatology since service. What remains for consideration is whether in the absence of a showing of onset in service or within the presumptive period, or a showing of continuity since, GERD may somehow otherwise be related to the Veteran's service. In this regard, the most probative and persuasive evidence of record shows that the Veteran's current GERD is unrelated to his service. The September 2012 VA examiner noted that the Veteran had episodes of gastroenteritis in service, but that they were of short duration and that gastroenteritis is a transient gastrointestinal infection generally of viral original and is unrelated to GERD. The examiner further stated that the Veteran's symptoms reported on examination are not supported by/do not correspond to the evidence in the medical records. Because the examiner expressed familiarity with the record and cited to supporting factual data, his opinion is both probative and persuasive evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also, Stefl v. Nicholson, 21 Vet. App. 120 (2007). Notably, there is no competent evidence to the contrary. The only other evidence in the record concerning the etiology of the Veteran's GERD is the Veteran's own statements. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and whether or not GERD may be related to symptoms in service (which ended more than 20 years earlier) is a medical question that requires medical expertise. See Jandreau, 492 F.3d at 1376-77. The Veteran is a layperson and has not presented any competent (medical opinion/textual) evidence in support of his allegation that his current GERD is related to his service, to include due to his Gulf War service. In this regard, the Board notes that there is no evidence to support finding that his stomach/gastrointestinal complaints are evidence of a medically unexplained chronic multisymptom illnesses. GERD has been diagnosed. On both February 2012 and September 2014 VA Gulf War examinations, the examiners did not find that the Veteran had stomach/gastrointestinal symptoms that were undiagnosed and could be attributed to a medically unexplained chronic multisymptom illness. His unsupported opinion in this matter is not competent evidence. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply. The appeal must be denied. ORDER Service connection for CFS is denied. Service connection for GERD is denied. REMAND During the pendency of this appeal, VA amended its regulatory provisions governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing a claimed in-service stressor. In this case, the Veteran does not appear to have been furnished with VCAA notice with respect to the PTSD amendments regarding hostile military and terrorist activity. 38 C.F.R. §§ 3.304(f)(3). The Veteran appears to attribute his PTSD, in part, to fear for his life when serving in a "combat ready battalion out of Okinawa" from August 1990 to April 1991. He stated that he served in Saudi Arabia, Iraq, and Kuwait, and that he had to extract dead civilians and Iraqi insurgents; he was separated from his platoon on more than one occasion; had to drive around in a combat zone with a convoy of explosives; spent three days in a burning oil field; operated in mine fields; kept track of prisoners of war while there were continuous airstrikes; and witnessed a Marine mutilate a dead enemy. Because the Board finds that his claim may be at least tangentially related to the revised regulatory provisions, the Veteran should be provided with proper VCAA notice of those provisions and additional attempts to verify the Veteran's claimed stressor(s) should be made. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran VCAA notice that provides notification regarding the evidence needed to substantiate a claim for PTSD under the amended regulations in 38 C.F.R. § 3.304(f)(3). 2. Secure for association with the record updated (to the present) records of any/all VA or private treatment the Veteran has received for his claimed variously diagnosed psychiatric disorder. 3. Contact the Veteran and request additional stressor verification information, including specific names, dates, and places of the incidents he describes. 4. Then, make a formation determination for the record (to include rationale) as to whether there is credible supporting evidence of a stressor event in service (identifying the stressor), and whether the Veteran's service involved circumstances consistent with a fear of hostile military/terrorist activity. 5. Thereafter arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine whether he has a psychiatric disorder (to specifically include PTSD) that is related to his active service. The examiner must be advised of the RO's findings regarding whether there is corroborating evidence of a stressor event in service, and whether the Veteran served in circumstances consistent with a fear of hostile activity. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Following examination of the Veteran and review of his record, the examiner must provide opinions that respond to the following: (a) Does the Veteran meet the criteria for a diagnosis of PTSD? If PTSD is not diagnosed, reconcile this finding with the positive PTSD screens noted in the record and a May 2013 VA treatment record noting an impression of PTSD. (b) If PTSD is diagnosed, it is at least as likely as not (a 50% or greater probability) related to a corroborated stressor event in service, or based on a fear of hostile/terrorist activity? (c) Please identify all other psychiatric disorders (excluding depression). (d) As to any psychiatric disability entity diagnosed, is it at least as likely as not (a 50% or greater probability) related to his service? The examiner must explain the rationale for all opinions. 6. Then review the record and readjudicate the claim. If it remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond before returning the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs