Citation Nr: 0813053 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 04-42 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama ISSUES 1. Entitlement to service connection for fatigue; malaise; headaches and nausea; poor, unrefreshing sleep; impaired concentration, attention and memory; tender lymph nodes, diffuse joint pain; and muscle pain, including under the provisions of 38 C.F.R. § 3.317. 2. Entitlement to service connection for neck pain, including under the provisions of 38 C.F.R. § 3.317. 3. Entitlement to service connection for erectile dysfunction, including under the provisions of 38 C.F.R. § 3.317. 4. Entitlement to service connection for high blood pressure, including under the provisions of 38 C.F.R. § 3.317. 5. Entitlement to service connection for skin rash, including under the provisions of 38 C.F.R. § 3.317. 6. Entitlement to service connection for itching feet, including under the provisions of 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from September 1991 to March 1992, including service in the Southwest Asia Theater from September 1991 to December 1991 in support of Operation Desert Shield/Desert Storm; and periods of active duty for training and inactive duty for training from 1973 until his retirement from the Army National Guard in 1994. Service Awards include the Southwest Asia Service Medal with Bronze Service Star (1) //Service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2004 the veteran appeared and testified at an RO hearing in Montgomery, Alabama. The transcript of that hearing is of record. The issues of entitlement to service connection for neck pain, erectile dysfunction, high blood pressure, skin rash, and itching feet are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The veteran complains of fatigue; malaise; headaches and nausea; poor, unrefreshing sleep; impaired concentration, attention and memory; tender lymph nodes, and diffuse joint and muscle pain; all of which he says began about a year his return from the Persian Gulf. 2. The veteran's symptoms of fatigue; malaise; headaches and nausea; poor, unrefreshing sleep; impaired concentration, attention and memory; tender lymph nodes, and diffuse joint and muscle pain have been collectively diagnosed by a compensation and pension (C&P) Gulf War examiner in June 2005 as chronic fatigue syndrome. CONCLUSION OF LAW A medically unexplained chronic multisymptom illness characterized as chronic fatigue syndrome is presumed to have been incurred during active military service. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a medically unexplained chronic multisymptom illness characterized as chronic fatigue syndrome, so a discussion of VA's duties to notify and assist is not required. The veteran reports that he suffers from multiple physical and neurological symptoms, including fatigue; malaise, headaches; nausea; difficulty with concentration and attention; memory problems; poor, unrefreshing sleep; tender lymph nodes, diffuse joint pain, and diffuse muscle pain. He insists that his health was fine prior to his deployment to the Persian Gulf, and points out that he would not have been deployed had he not been in good health. His DD 214 confirms service in the Southwest Asia Theater in 1991 in support of Operation Desert Shield/Desert Storm. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. See 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). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). "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). Aside from some apparently transitory complaints in October 1973 diagnosed as "bilateral temporal headache associated with visual changes," the record contains no other evidence of headaches, and no evidence of any complaints of or treatment for fatigue, malaise, nausea, difficulty with concentration and attention; memory problems; poor sleep, diffuse muscle and joint pain, or tender lymph nodes prior to the veteran's deployment in September 1991 to the Persian Gulf. In July 1995 a Persian Gulf Registry Code Sheet was completed. Symptoms documented at that time included, among others, joint pain and headaches. In June 2005 the veteran was accorded a C&P Gulf War Guidelines examination. The examiner confirmed that the claims file was reviewed prior to the examination. During the examination the veteran complained of fatigue and post- exercise malaise. He reported that he feels tired most of the day and requires frequent periods of rest throughout the day, and said that he suffers from a sensation of malaise after performing any mild to heavy exercise, such as running for prolonged periods of time. He also complained of poor memory; poor concentration and attention; poor, unrefreshing sleep; headaches; aching in multiple joints, (including the hands, knees, and elbows); aching muscles with sensation of cramping; tender lymph nodes; and nausea. He maintained that his symptoms began "around 1992." Physical examination confirmed mild difficulty with memory and obvious lethargy. Diagnosis was chronic fatigue syndrome. The record contains no evidence to the contrary. The Board again notes that the record is bereft of any mention of the aforementioned complaints prior to the veteran's service in the Persian Gulf. Although the veteran was apparently treated for bi-temporal headaches in 1973, the Board is persuaded that the headaches complained of since his service in the Persian Gulf are part and parcel of the cluster of symptoms diagnosed by VA in June 2005 as chronic fatigue syndrome. Id.; see also Boggs v. Peake, --- F.3d --- -, No. 2007-7137, 2008 WL 783368 (Fed. Cir. Mar. 26, 2008) (holding that claims involving overlapping symptoms must be considered independently because they rest on distinct factual bases). Moreover, the record contains highly probative evidence that attributes the aforesaid cluster of symptoms to chronic fatigue syndrome, which has been determined by the Secretary to be a medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317(a)(2)(i)(B)(1). Based on the evidence of record, and in accordance with 38 C.F.R. § 3.317, service connection for a medically unexplained chronic multisymptom illness characterized as chronic fatigue syndrome is warranted. ORDER Service connection for a medically unexplained chronic multisymptom illness (chronic fatigue syndrome) is granted. REMAND In addition to the foregoing, the veteran also complains of neck pain, erectile dysfunction, high blood pressure, skin rash, and itching feet, all of which he says began about a year after his return from the Persian Gulf. C&P examination done in June 2005 yielded diagnoses of chronic cervical spine pain status post laminectomies; erectile dysfunction; hypertension; contact dermatitis; tinea pedia; and dyspepsia. Unfortunately, the examiner did not opine as to whether these disorders were incurred during active military service. Remand for an examination in accordance with C&P Gulf War examination guidelines is warranted. 38 C.F.R. § 3.159(c)(4). Since the case is being remanded a request should also be made for all VA treatment records compiled by the Birmingham, Alabama Veterans' Affairs Medical Center (VAMC) since January 20, 2006. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c) (2). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Request medical records from the Birmingham VAMC dating from January 20, 2006. Also attempt to obtain any other pertinent treatment records identified by the veteran during the course of the remand, provided that any necessary authorization forms are completed. If no further treatment records exist, the claims file should be documented accordingly. 2. Schedule the veteran for a Gulf War examination with regard to his claims for service connection for neck pain, rashes, erectile dysfunction, high blood pressure, and itching feet. Current Compensation and Pension Examination Gulf War Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. NOTE: If any claimed disorder is determined to be attributable to a known clinical diagnosis, the examiner must state whether it is at least as likely as not that the condition was incurred during active military service; during a period of active duty for training; or during a period of inactive duty for training. The examiner must also indicate whether any symptoms reported by the veteran cannot be attributed to a known clinical diagnosis. The claims file must be made available to, and reviewed by, the examiner(s), and the examiner(s) must state that the claims file was reviewed in the report provided. A complete rationale for all conclusions and opinions must be provided. 3. Readjudicate the claims on appeal. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1) and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs