Citation Nr: 1549842 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 04-34 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for headaches, to include as due to an undiagnosed illness or as secondary to fibromyalgia. 2. Entitlement to service connection for fatigue syndrome, to include as due to an undiagnosed illness or as secondary to fibromyalgia. 3. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness or as secondary to fibromyalgia. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to June 1979. He had additional service in the Alabama Army National Guard from August 1979 to June 2002, with a period of active duty during the Gulf War from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran has been granted service connection for fibromyalgia, assigned a 10 percent disability rating, effective July 15, 2002; and posttraumatic stress disorder (PTSD), assigned a 10 percent disability rating, effective April 8, 2010. This matter was previously remanded by the Board for further development in July 2006, September 2009, and May 2011. Such has been completed and these matters are returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The objective medical evidence demonstrates that the Veteran's current headaches is secondary to or a manifestation of the service-connected fibromyalgia. 2. The objective medical evidence demonstrates that the Veteran's current fatigue is secondary to or a manifestations of the service-connected fibromyalgia. 3. The objective medical evidence demonstrates that the Veteran's current memory loss is secondary to or a manifestation of the service-connected fibromyalgia and/or PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches, as secondary to or a manifestation of the service-connected fibromyalgia, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for service connection for fatigue, as secondary to or a manifestation of the service-connected fibromyalgia, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). 3. The criteria for service connection for memory loss, as secondary to or a manifestation of the service-connected fibromyalgia and/or PTSD, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 As provided for by the VCAA, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As the Board's decision to grant service connection for headaches, fatigue, and memory loss, as secondary to or a manifestation of the service-connected fibromyalgia and/or PTSD, herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations. II. The Merits of the Claims Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and, thus, such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Secondary service connection may be granted for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such claimant shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). The Board also observes that under 38 C.F.R. § 3.317, 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. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a)(1) (2012)). 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.A 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. § 3.317, 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. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5) (2015); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2014). The United States Court of Appeals for the Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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). The Veteran has consistently claimed that his headaches, fatigue syndrome, and memory loss were either directly related to his service, to include as secondary to his service-connected fibromyalgia, or were due to an undiagnosed illness. According to the Veteran's National Guard records, which include his service treatment records from his first period of active service from 1975 to 1979, the Veteran was noted to complain of headaches on his Report of Medical History at the time of his screening for deployment in November 1990. They were attributed to reading and the Veteran was to have an eye examination. He again reported having headaches on his Report of Medical History at the time of his demobilization in April 1991. No notation was made. He again reported headaches in November 1996. The examiner stated the Veteran noticed the headaches with sinusitis. The Veteran said he developed sinus problems in Southwest Asia. The examiner said the Veteran was followed by "Montgomery VA." The Veteran again reported headaches and sinusitis on his Report of Medical History of November 1997. The examiner only noted frequent headaches with no particular association. The service treatment records are negative for any of the other claimed disorders The lay statements generally noted that the Veteran was in good health prior to his deployment to Southwest Asia and that he had lost weight on his return and continued to lose weight in the next couple of years. Several of the statements attested to a general decline in the Veteran's health. His spouse spoke of witnessing the Veteran in great pain and being diagnosed with fibromyalgia. According to the post-service treatment records, a diagnosis of recurrent migraine headaches, memory loss, and chronic fatigue has been documented. It was noted by the Board in May 2011 that a review of the January 2010 VA examination report reflected that the Veteran was specifically examined for chronic fatigue syndrome and headaches; however there was no indication that the Veteran's memory was tested separate from his PTSD examination. The Veteran was diagnosed with tension headaches, but the VA examiner stated that the evidence was insufficient to warrant an acute diagnosis of chronic fatigue syndrome. The February 2010 VA PTSD examination reflected that the Veteran demonstrated memory loss, but such was attributable to the Veteran's PTSD. Contrarily, the January 2010 VA General examination report reflects the examiner's opinion that his memory loss was associated with his fibromyalgia. The Board further noted in May 2011 that the January 2010 VA examination reports were ambiguous as to whether the Veteran's fatigue syndrome, memory loss and/or headaches were separate disabilities for which service connection may be granted, or rather, manifestations of the Veteran's service-connected fibromyalgia or PTSD. Therefore, these issues were subsequently remanded by the Board for additional development. In May 2012, the Veteran underwent a VA Gulf War General Medical Examination where the examiner opined that the fatigue syndrome, memory loss, and headaches were at least as likely as not proximately due to or the result of the Veteran's service-connected condition. The examiner acknowledged that the Veteran had fibromyalgia and that according to the medical literature, fatigue is a universal symptom in fibromyalgia and other symptoms include cognitive (memory problems) and mood disturbances. Furthermore, the examiner stated that headaches were present in more than 50 percent and include migraine and muscular tension type. The examiner concluded, "therefore, it is at least as likely as not for the [Veteran's] fatigue, headaches and memory loss to be due to the [f]ibromyalgia and less likely as not a separate disability to an undiagnosed illness, since his symptoms are classically seen in fibromyalgia. [A]lso, the [V]eteran has PTSD which can also cause cognitive impairment (memory issues), this symptom overlaps with the fibromyalgia." Initially, although the Veteran served in Southwest Asia, to the extent that some of the Veteran's statements may have suggested that his claimed conditions involves an undiagnosed illness or Persian Gulf syndrome theory, the Board notes that his claims feature symptoms that have been attributed to a known clinical diagnosis of fibromyalgia and/or PTSD. Therefore, the claimed conditions do not fall within the purview of the undiagnosed illness presumptive provisions under 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. After a careful review of the Veteran's claims file and by granting the Veteran the benefit of the doubt the Board finds that the Veteran's headaches, fatigue, and memory loss are manifestations of service-connected disability. The Board acknowledges that the Veteran's theory of entitlement is that this disabilities are secondary to his service-connected fibromyalgia. The Veteran has provided lay statements and the May 2012 VA examiner has provided a positive nexus opinion. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Board finds that the May 2012 VA examiner's opinions are probative as they are the most thorough and factually supported opinion of record, given that they are consistent with other evidence of record and included review of the claims file. This medical evidence is competent, credible and persuasive, as it is based on accurate facts and supported by a rationale based on medical principle. Id. In view of the totality of the evidence, including the Veteran's documented in-service fibromyalgia; current findings of headaches, fatigue, and memory loss; and the positive nexus opinions of record, the Board finds that headaches, fatigue, and memory loss are causally related to or manifestations of the Veteran's service-connected fibromyalgia and/or PTSD. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for headaches, fatigue, and memory loss, as secondary to or manifestations of service-connected disability, are warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board makes no determination herein as to whether a separate evaluation or evaluations are appropriate. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for headaches, to include as secondary to or a manifestation of the service-connected fibromyalgia, is granted. Entitlement to service connection for fatigue, to include as secondary to or a manifestation the service-connected fibromyalgia, is granted. Entitlement to service connection for memory loss, to include as secondary to or a manifestation of the service-connected fibromyalgia and/or PTSD, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs