Citation Nr: 0810342 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-08 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for anxiety disorder. 2. Entitlement to service connection for depressive disorder. 3. Entitlement to service connection for a headache disorder, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a disorder manifested by body aches, to include as due to an undiagnosed illness. 5. Entitlement to service connection for insomnia, to include as due to an undiagnosed illness. 6. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness 7. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from March 1987 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal. In January 2008, the veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims folder. The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At his January 2008 hearing before the Board, the veteran withdrew his appeals concerning entitlement to service connection for an anxiety disorder and a depressive disorder. 2. There is no medical evidence of a causal link between the veteran's migraine headaches and any incident of service, and his headaches have been linked to a diagnosed condition. 3. There is no medical evidence of a causal link between the veteran's body aches and any incident of service, and his body aches have been linked to a diagnosed condition. 4. There is no medical evidence of a causal link between the veteran's insomnia and any incident of service, and his insomnia has been linked to a diagnosed condition. 5. The veteran does not have chronic fatigue syndrome. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for an anxiety disorder have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for a depressive disorder have been met. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. §§ 20.202, 20.204. 3. A headache disorder was not incurred in or aggravated by service, nor is such a disorder due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2007). 4. A disorder manifested by body aches was not incurred in or aggravated by service, nor is such a disorder due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. Insomnia was not incurred in or aggravated by service, nor is such a disorder due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 6. Chronic fatigue syndrome was not incurred in or aggravated by service, nor is such a disorder due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2007). Withdrawal may be made by the appellant or by his authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (2007). In March 2006, the veteran submitted a VA Form 9 perfecting his appeals as to the issues of entitlement to service connection for an anxiety disorder and a depressive disorder, as identified in the January 2006 statement of the case. In January 2008, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. The transcript of the hearing shows that the appellant, through his representative, withdrew the appeal for the claims of entitlement to service connection for an anxiety disorder and service connection for a depressive disorder. The oral statement, when transcribed, became a "writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). Therefore, the Board finds that the appeal for the claims of entitlement to service connection for an anxiety disorder and a depressive disorder has been withdrawn. 38 C.F.R. § 20.204. The case is now ready for appellate review. As the appellant has withdrawn his appeals as to the issues of entitlement to service connection for an anxiety disorder and a depressive disorder, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. The Board therefore has no jurisdiction to review the issues. Accordingly, the issues of entitlement to service connection for an anxiety disorder and a depressive disorder are dismissed. Service connected claims Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Compensation may be paid to any Persian Gulf War veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C.A. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, headaches, sleep disturbances, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested either 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 December 31, 2011, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a 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. Service medical records are negative for complaints, treatment, or diagnosis of headaches, body aches, insomnia, or chronic fatigue syndrome. Neurology notes dated in November and December 2001 from John P. Carlson, M.D., noted that the veteran reported his headaches beginning when he was a teenager. They became worse approximately two years ago. An MRI of the head done in October 2001 showed a possible vascular malformation. The examiner noted it looked like a venous angioma adjacent to the frontal horn of the left lateral ventricle. He also had sphenoid sinusitis. After the examination, the examiner diagnosed migraine headaches. It was noted that the veteran was seen at the sleep disorder clinic for sleep apnea. They did not think he had it. They referred him to the psychiatrist. The veteran's wife reported he had issues about the Gulf War and other stress and had a lot of trouble sleeping. It was noted that he was started on Paxil and Zyprexa and had six hours of sleep last night, which was much better than usual for him. The impression was stressful situation. Medical treatment records from Michael J. Fox, M.D., dated 2001 to 2002 showed diagnosis and treatment for migraine headaches. Hospital records from First Hospital Wyoming Valley indicated the veteran was admitted in February 2002 after he described taking an overdose of Zyprexa as a result of a fight that he had with his wife. The veteran's discharge diagnoses included PTSD of unknown origin, major depression, and alcohol abuse. A medical records from Helene Hughes, L.C.S.W. dated in 2002 and 2003 noted difficulties with depression, symptoms of PTSD, sleeplessness, and anxiety over the veteran's occupational and social situations, and the medications he took for depression and anxiety. At an August 2005 VA examination, the veteran reported that since 1992 he had experienced a gradual, progressive development of fatigue associated with body aches, headaches, and insomnia. The veteran denied having generalized, diffuse body muscle aches. Instead he claimed to have muscle aches localized in both shoulders following strenuous lifting. He had not noted any significant muscle weakness. He denied experiencing fatigue lasting 24 hours or longer after exercise activity. The veteran reported headaches in the temporal area. It was noted that the veteran received a diagnosis of migraine headaches from Dr. Carlson at the Geisinger Medical Center in 2001. The veteran described having a long history of lack of motivation associated with anxiety and depression. The veteran reported that he had interrupted sleep caused by nightmares resulting in awakening during the night. He complained that he did not feel rested in the morning because of insomnia and nightmares. In his routine activities of daily living and recreation, he complained that he avoided activity that he previously enjoyed, such as hunting and fishing. However, he occasionally played golf. He complained that in performing his daily activity chores at home he felt tired after 30 to 45 minutes of activity. He had not had any incapacitating episodes of fatigue requiring bed rest and treatment by a physician. He did not require medication for his fatigue symptoms. He had no history of debilitating fatigue severe enough to reduce or impair average daily activity below 50 percent of his pre-illness activity level for a period of six months. After examination, the diagnoses included: insufficient criteria for chronic fatigue syndrome; migraine headaches; muscle strain, both shoulders; depressive disorder with insomnia; lack of motivation; and fatigue. Social Security Administration records show that the veteran was found disabled in October 2001 with a primary diagnosis of major depression and a secondary diagnosis of PTSD. At his January 2008 Board videoconference hearing, the veteran testified that he started getting headaches in 2001 and Dr. Carlson related them to stress. He stated that he would get nauseated with the headaches and light bothered him. The veteran testified that he had pains in his knees and shoulders. He indicated he was recently diagnosed with arthritis in his knees. The veteran indicated that his fatigue started in 2001 and he had no energy. He stated it was related to his insomnia and PTSD. He stated he was taking different pills, but they did not help. The veteran noted that he noticed his insomnia in 2001 and it was rare that he could get a good night's sleep. He stated he had four or five hours of broken sleep a night. The veteran complained of nightmares and flashbacks as the reason for his insomnia. The Board finds that the preponderance of the evidence is against service connection on either a direct basis or under the provisions for Persian Gulf claims for headaches, body aches, insomnia, or chronic fatigue syndrome. Initially, to whatever extent the veteran had headaches, body aches, and insomnia, they have been ascribed diagnoses, which precludes service connection under the statutes and regulations that govern claims based upon service in the Persian Gulf, which require an undiagnosed illness. The veteran's headaches have been diagnosed as migraine headaches. The veteran's body aches were described as those aches localized in both shoulders following strenuous lifting. The veteran denied having generalized, diffuse body muscle aches. The veteran was diagnosed with muscle strain of both shoulders. Later in his January 2008 Board videoconference hearing, the veteran described knee aches which were diagnosed as arthritis. The veteran's insomnia has been related to stressful situations as well as nightmares and flashbacks. The August 2005 VA examiner noted that the veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. In addition, to the extent that the veteran is claiming service connection for headaches, body aches, insomnia, and chronic fatigue syndrome on a direct basis, the Board has found no evidence that the veteran's current disabilities had their onset in service. Indeed, there is nothing in the claims file, other than the veteran's own contentions, which would tend to establish that these current disabilities are related to his active military service. As a lay person, his statements on such matters do not constitute competent medical evidence, since he is not competent to give a medical opinion on diagnosis or etiology of a disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (When the determinative issue involves a question of medical causation, only individuals possessing specialized training and knowledge are competent to render an opinion.). There is no medical evidence of a nexus between the veteran's headaches, body aches, insomnia, or fatigue and his period of active duty service. The medical evidence of record is against finding a basis to grant service connection. In addition, there is no evidence that the veteran currently suffers from chronic fatigue syndrome. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In Brammer, the United States Court of Appeals for Veterans Claims (Court) stated that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability." Brammer, 3 Vet. App. at 225. The Court further stated that where the proof is insufficient to establish a present disability there could be no valid claim for service connection. Id. As is noted above, the veteran asserts that he is entitled to service connection for a disability manifested by chronic fatigue syndrome. However, the medical evidence clearly shows that he does not have a disability manifested by chronic fatigue syndrome whether diagnosed or undiagnosed. Under these criteria, a "disability" for VA compensation benefit purposes is not shown to be present in this case. In the absence of a current disability, as defined by governing law, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in August 2003 of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA informed the claimant of the need to submit all pertinent evidence in his possession. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. The veteran was provided specific notice of how disability ratings and effective dates are assigned as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), in August 2007, after the Dingess decision was issued. The timing of this notice is harmless in this instance because the preponderance of the evidence is against the appellant's claims for service connection for headaches, body aches, insomnia, and chronic fatigue syndrome and any questions as to the appropriate disability ratings or effective dates to be assigned are moot. The veteran also testified at a Board videoconference hearing in January 2008. In addition, VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. The veteran's service medical records, VA treatment records, VA examinations, private medical records, and Social Security Administration records have been associated with the claims folder. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER The appeal concerning the issue of entitlement to service connection for an anxiety disorder is dismissed. The appeal concerning the issue of entitlement to service connection for a depressive disorder is dismissed. Entitlement to service connection for a headache disorder is denied. Entitlement to service connection for a disorder manifested by body aches is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for chronic fatigue syndrome is denied. REMAND The veteran claims he has PTSD related to combat stressors he experienced in the Gulf War from January 1, 1991 to May 1, 1991. Verification of the claimed stressors through the U.S. Army and Joint Services Records Research Center (JSRRC) has not been accomplished. A remand is necessary to ensure that the evidentiary record is complete. Accordingly, the case is REMANDED for the following development: 1. The veteran and his representative should be contacted and again requested to furnish the specific details (dates, locations, names, etc.) of the claimed inservice stressors within a three month period, to include relevant unit designations at the company and battalion levels. 2. The RO should attempt to obtain copies of all pertinent records which have not already been obtained. This should specifically include obtaining the veteran's complete service personnel records. 3. Taking into account all information obtained in accordance with paragraphs 1 and 2, the RO must review the claims file and prepare a summary of all of the veteran's claimed stressors. This summary, together with a copy of the DD 214 and this remand, and all associated documents should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC). That agency should be asked to provide any information that might corroborate the veteran's alleged stressors, to include morning reports/or unit histories. The RO should undertake any other steps it deems appropriate in attempting to verify the stressors. 4. If and only if, any claimed stressor event is found to be reasonably corroborated by credible supporting evidence, the veteran should undergo a VA psychiatric examination to clarify whether he has PTSD related to documented stressors during service. The RO must specify for the examiner the stressor or stressors which it has determined that the veteran was exposed to in service and the examiner must be instructed to consider only those stressors in determining whether the veteran has PTSD. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. It is essential that the claims file be provided to the examiner for review in conjunction with the examination, together with a copy of this remand. 5. After undertaking any other development deemed appropriate, the RO should then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO must issue a supplemental statement of the case, and provide him with an opportunity to respond. The RO is advised that they are to include any further changes in VCAA and any other applicable legal precedent. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. 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). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs