Citation Nr: 0813590 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-05 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to undiagnosed illness. ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from March 1998 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In a statement dated in May 2005, the veteran withdrew his request for a Board hearing. The Board notes that by a letter dated in October 2005, the Military Order of the Purple Heart withdrew as the veteran's representative. The Board notes that the veteran has also filed claims for an increased disability rating for his spinal disability, currently evaluated as 10 percent disabling, entitlement to service connection for post-traumatic stress disorder (PTSD), hepatitis B and chest pain in February 2003. The RO issued rating decisions dated in March and August 2003 that denied the veteran's claims. The veteran submitted a timely notice of disagreement (NOD) in September 2003 and was issued a statement of the case (SOC) in December 2004. Though the veteran did submit a VA Form 9 to perfect his appeal, it was received in February 2005, more than 60 days after the issuance of the SOC. Thus, the veteran's appeal of the aforementioned issues is not timely, and these issues are not before the Board. In February 2007, the Board denied the veteran's claims of entitlement to service connection for pseudofolliculitis barbae and his claims of entitlement to service connection for fibromyalgia, headaches, abnormal weight loss, sleep disturbances, frequent diarrhea and memory problems, to include as due to undiagnosed illness. The current claim, entitlement to service connection for CFS, was remanded for additional development. In a statement dated in September 2003, the veteran appears to be filing a NOD with the Hines VA Medical Center (VAMC) for a waiver of treatment costs. In the alternative, the veteran could be filing a claim for reimbursement of medical expenses, and this matter should be REFERRED to the VAMC for appropriate action. FINDINGS OF FACT 1. The veteran cancelled three VA examinations and failed to report for the fourth VA examination. 2. The veteran's chronic fatigue is attributable to his drug use and depression, and there is no medical evidence indicating it is a possible manifestation of undiagnosed illness or any aspect of the veteran's military service. CONCLUSION OF LAW Chronic fatigue syndrome was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have 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). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to the initial adjudication of the veteran's claim, a letter dated in September 2003 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter also specifically informed the veteran of what was necessary to substantiate his claim for Gulf War Undiagnosed Illness. He was provided with a detailed guide on how to proceed with his claim. The September 2003 letter told him to provide any relevant evidence in his possession. See Pelegrini II. Though the veteran was not provided with notification of disability ratings and effective date matters, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), he was not prejudiced by such. Since the claim is being denied, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The veteran's service medical records, VA medical treatment records, Social Security records, and identified private medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The veteran was also accorded a VA examination in October 2003. See 38 C.F.R. § 3.159(c)(4) (2007). The Board notes that the veteran rescheduled the VA examination ordered by the Board's February 2007 remand, three times and then failed to report to the fourth examination. The veteran was advised that failure to report for any scheduled examination may result in the denial of his claim. See 38 C.F.R. § 3.655 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). II. The Merits of the Claim Service connection may be granted for disability due to disease or injury that was incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). Service connection may also be granted for any disability shown after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d) (2007). Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. This provision does not relieve the requirement that there be some evidence of a nexus to service. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d) (2007). To establish entitlement to service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). However, with regard to undiagnosed illness, as discussed in more detail below, the veteran is not required to provide competent evidence linking a current disability to an event during service. See Gutierrez v. Principi, 19 Vet. App. 1 (2004). Service connection may be established for a chronic disability resulting from an undiagnosed illness, which became manifest either during active 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. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2007); 38 C.F.R. § 3.317 (2007). On December 27, 2001, the President signed HR 1291, the "Veterans Education and Benefits Expansion Act of 2001" (VEBEA), Pub. Law 107-103, 115 Stat. 976 (December 27, 2001). Section 202(a) of the Act amended 38 U.S.C.A. 1117 to expand the definition of "qualifying chronic disability" (for service connection) to include not only a disability resulting from an undiagnosed illness as stated in prior law, but also any diagnosed illness that the Secretary determines in regulations warrants a presumption of service-connection under 38 U.S.C.A. 1117(d). Section 202(a) also expanded compensation availability for Persian Gulf veterans to include "medically unexplained chronic multi-symptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome that is defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317 was amended in 2003 to incorporate these changes, and that amendment was made retroactively effective March 1, 2002. See 68 Fed. Reg. 34539-543 (June 10, 2003). New 38 C.F.R. § 3.317(a)(2)(ii) was added defining the term "medically unexplained chronic multi-symptom illness" to mean "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." It was further stated that "Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained." As yet, VA has not identified any illness other than the three identified in section 202(a) as a "medically unexplained chronic multi- symptom illness;" therefore, new 38 C.F.R. § 3.317(a)(2)(i)(B)(1) through (3) only lists chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome as currently meeting this definition. See 68 Fed. Reg. 34,539- 543 (June 10, 2003). It was provided, however, in new 38 C.F.R. § 3.317(a)(2)(i)(B)(4) that the list may be expanded in the future when the Secretary determines that other illnesses meet the criteria for a "medically unexplained chronic multi-symptom illness." A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2007); 38 C.F.R. § 3.317(a)(1)(i) (2007). 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. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. See 38 C.F.R. § 3.317(a)(2-5) (2007). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi- symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See C.F.R. § 3.317(b), as amended by 68 Fed. Reg. 34539-543 (June 10, 2003). The Secretary of Veterans Affairs, under the relevant statutory authorities, has determined that there is no basis for establishing a presumption of service connection for any illness suffered by Gulf War veterans based on exposure to depleted uranium, sarin, pyridostigmine bromide, and certain vaccines. See 66 Fed. Reg. 35,702-10 (July 6, 2001), and 66 Fed. Reg. 58,784-85 (Nov. 23, 2001). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir.1994). The Board has therefore given consideration to whether service connection may be granted for the veteran's claimed disorder regardless of his Persian Gulf service. The veteran alleges that during his time in Southeast Asia, he was exposed to hazardous waste and industrial chemical vehicles. He claims that this exposure is the reason for his claimed illness. Upon review of the veteran's service medical records, the Board notes that upon entry into service, the veteran did not report fatigue, nor was it noted on his entrance examination. See Standard Forms (SF) 88 & 93, entrance examination, October 14, 1997. In March 1998, the veteran was seen with complaints of feeling weak and falling asleep standing up. There was no previous history of weakness. See service medical record, March 9, 1998. In April 1998, the veteran was placed on temporary duty restriction due to extreme fatigue. See service medical record, March 9, 1998. The Board notes that the veteran suffered from fatigue prior to his deployment to Southeast Asia. In fact, the remainder of the veteran's service medical records are completely negative for any complaints of or treatment for fatigue or malaise. The veteran was deployed to the United Arab Emirates in 1999 and returned in good health. See Post Deployment Health Assessment, June 22, 1999. The veteran was deployed to Korea in October 1999 and did not complain of fatigue or malaise. See Pre-Deployment Health Assessment, October 14, 1999. In August 2001, a chronological record of medical care noted the veteran specifically indicated that he did not have any medical problems or symptoms that bothered him. See service medical record, August 20, 2001. In January 2002, a "possible somatoform disorder" was noted, but a specific condition was not referenced. See service medical record, January 22, 2002. The veteran was also deployed to Kuwait from March 2002 to July 2002. Prior to and upon his return, the veteran did not report any health complaints. See Pre and Post Deployment Health Assessments, January 22, 2002 and July 8, 2002, respectively. A separation examination was not associated with the veteran's service medical records. The veteran was seen at the VA Medical Center (VAMC) in March 2003 with complaints of fatigability and lack of endurance. While the veteran was noted to be generally tired, he attributed this to his PCP and marijuana use. See VAMC treatment record, March 20, 2003. In June 2003, the veteran participated in a VA liver, gallbladder and pancreas examination. It was noted that the veteran complained of fatigue for several years and that it was stable. The examiner concluded that the veteran's fatigue "could be the result of drug use and depression." See VA examination report, June 10, 2003. Additionally, a subsequent VA examination report in October 2003 noted the veteran appeared to be tired. The examiner commented that the veteran's report of generalized weakness was not found on clinical exam. However, the possible effects of his medication (Gabapentin, Olanzapine and Trazedone) could promote drowsiness. These medications were useful in the treatment of the veteran's complaints of sleep disturbance and pain. None of these conditions were considered due to a Gulf War undiagnosed illness. See VA examination report, October 22, 2003. Upon examination of the record, the Board finds that service connection under the provisions of 38 C.F.R. § 3.317 cannot be granted. Since his separation from service, there are only vague complaints of fatigue. He states this condition is chronic, and he is certainly competent to relate such subjective symptomatology. Regardless, there must be either objective indicators of a disability, such as "signs" evident to a medical examiner or other, non-medical indicators capable of independent verification. There is no such evidence here. No medical examiner has diagnosed the veteran with CFS. Furthermore, the evidence reflects no independently verifiable non-medical indicators consistent with CFS. That is, there is no evidence verifying the veteran's complaints that VA could independently verify. Thus, it cannot be said that the veteran suffers from a chronic disability, within the meaning of applicable law and regulations. Service connection for chronic disabilities manifested by CFS therefore is denied. See 38 C.F.R. § 3.317 (2007). The veteran's claim also fails on a direct basis. Though there are two complaints of fatigue in service, these complaints were at the beginning of the veteran's service, and incidentally, prior to any deployment to Southwest Asia. The only evidence even marginally in support of the veteran's claim is the June 2003 VA examination report that noted the veteran's fatigue "could" be the result of his drug use and depression. The Board observes that the Court has held that medical opinions, which are speculative, general or inconclusive in nature, cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In this case, the examiner has left the etiology of the veteran's fatigue open to speculation, and in doing so, did not provide a medical nexus between the veteran's initial complaints of fatigue in service and his present condition. The veteran was afforded the opportunity to have a new VA examination to address this question on four separate occasions and he failed to report. See 38 C.F.R. § 3.655 (2007). As there is no medical nexus relating the veteran's fatigue to service, his claim must be denied. See 38 C.F.R. § 3.303(d) (2007). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the veteran's claim that his current fatigue is due to an undiagnosed illness or directly related to service. There is not an approximate balance of evidence. See 38 C.F.R. §§ 3.303(d), 3.317 (2007). ORDER Entitlement to service connection for chronic fatigue syndrome, to include as due to undiagnosed illness, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs