Citation Nr: 0935197 Decision Date: 09/18/09 Archive Date: 09/23/09 DOCKET NO. 04-36 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sweating, to include as due to an undiagnosed illness. 2. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 3. Entitlement to service connection for stomach and intestine pain, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1988 to October 1992, including service in the Southwest Asia theater of operations from December 29, 1990 to May 4, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the Veteran's claim for entitlement to service connection for a sleeping disorder, dry eyes, dry lips, dry throat, memory loss, slurred and stuttered speech, sweating, fatigue, and stomach and intestine pain, all as due to an undiagnosed illness. In February 2007, the Veteran's claims file was transferred to the RO in St. Petersburg, Florida. In August 2007, the Veteran failed to appear for a scheduled video conference hearing before a Veterans Law Judge at the RO. The Veteran has neither given good cause for failure to appear nor asked that the hearing be rescheduled; therefore, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2008). In October 2007, the Board denied service connection for a sleeping disorder, dry eyes, dry lips, dry throat, memory loss, slurred and stuttered speech, all as due to an undiagnosed illness, and remanded the Veteran's claim for sweating, fatigue, and stomach and intestine pain, as due to an undiagnosed illness, for additional development. As the required development has been completed, these issues are again before the Board for further appellate review. FINDINGS OF FACT 1. The Veteran had military service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. There is objective evidence of disability manifested by excessive sweating due to undiagnosed illness. 3. There is objective evidence of disability manifested by fatigue due to undiagnosed illness. 4. There is objective evidence of disability manifested by stomach and intestine pain due to undiagnosed illness. CONCLUSIONS OF LAW 1. A chronic undiagnosed disorder manifested by excessive sweating was incurred in active service in Southwest Asia. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2008). 2. A chronic undiagnosed disorder manifested by fatigue was incurred in active service in Southwest Asia. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2008). 3. A chronic undiagnosed illness manifested by stomach and intestine pain was incurred in active service in Southwest Asia. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With regard to the Veteran's claims, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless in terms of these issues and will not be further discussed. Service connection Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also may 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). Where a Veteran who served for ninety days or more during a period of war develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309. 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). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection also may be established for chronic disabilities due to undiagnosed illnesses, if there is evidence that the claimant: (1) is a "Persian Gulf Veteran;" (2) who exhibits objective indications of chronic disability resulting from an illness or combinations of illnesses manifested by one or more signs or symptoms; (3) 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; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. A Persian Gulf Veteran is 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). In the present appeal, the Veteran's military records document that he served in Southwest Asia, from December 29, 1990 to May 4, 1991, making him a Persian Gulf Veteran. Objective indications of chronic disability are described as either objective medical evidence perceptible to a physician or other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2). Further, a chronic disability is one that has existed for 6 months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period. 38 C.F.R. § 3.317(a)(3). 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. Id. A qualifying "chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Compensation shall not be paid pursuant to 38 C.F.R. § 3.317(a), however, if there is affirmative evidence that an undiagnosed illness: (1) was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) 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 (3) is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection - sweating The Veteran contends that he has an undiagnosed illness manifested by sweating which is due to his service in the Southwest Asia theater of operations during the Persian Gulf War. Service treatment records do not show treatment for or a diagnosis of a disorder manifested by sweating. The Veteran's July 2002 VA Gulf War examination reflects the Veteran's reports that he believed that he sweat excessively overall, but especially in the axillary areas. He also described sweating excessively every night, and even though the sheets were moist they were not soaked through. At these times, he did not feel ill or think he had a fever or infection, and was not aware of any enlarged masses or lymph nodes. The examiner noted that there was no disease to explain the Veteran's sweating and that these were not actual profuse sweating episodes, such as those that would soak the sheets at night. At his September 2003 VA examination for posttraumatic stress disorder (PTSD), the Veteran indicated that, when he had nightmares, he would sweat much more frequently. An April 2003 VA medical record reflects that the Veteran reported that he sweat profusively throughout the day and night, even though he felt cold. In August 2003, the Veteran reported that his sweating had improved since he started taking Prozac. A November 2003 VA medical record shows that the Veteran awakened in sweats. A February 2009 VA examination report shows that the Veteran indicated that he was "always sweating." The examiner opined that the Veteran's sweating is related to his active service in the Southwest Asia theater of operations. The examiner noted that his rationale was based upon his review of the claims file and medical and subjective history. It was further noted that this condition and his fatigue had significant effects on the Veteran's occupation. As noted above, in order to warrant service connection for an undiagnosed illness, several elements must be met. There must not only be evidence that the claimant is a "Persian Gulf Veteran," as in this case, but the evidence must also show that his disability, manifested by one or more signs or symptoms, is chronic and 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. Finally, as here, the disability must not be attributed to any known clinical diagnosis. A chronic disability is one that has existed for 6 months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a 6- month period. 38 C.F.R. § 3.317(a)(3). The Board finds that the Veteran has consistently reported problems with sweating throughout the appeals period, and while it appears that he has had periods of improvement, the regulations accounts for these periods in considering whether a disability is chronic. Based upon the evidence of record, it appears that the Veteran's sweating is a chronic condition. In addition, a February 2009 VA examiner related the Veteran's sweating disorder to his service in Southwest Asia, his condition has not been attributed to a known diagnosis, and there is no medical opinion that specifically states that the Veteran does not have a chronic sweating disorder that is related to his service in the Persian Gulf. In summary, based on all of the above, the Board finds that the undiagnosed illness manifested by excessive sweating has been sufficiently linked by competent medical evidence to service, and that service connection for chronic disability manifested by excessive sweating is therefore warranted. Service connection - fatigue The Veteran contends that he has an undiagnosed illness manifested by fatigue which is due to his service in the Southwest Asia theater of operations during the Persian Gulf War. Service treatment records do not show any treatment for or a diagnosis of a disorder manifested by fatigue while the Veteran was on active duty. The Veteran's July 2002 VA Gulf War examination reflects the Veteran's reports that he sometimes would awaken in the morning feeling tired. While the Veteran reported sleep difficulties, he indicated that his sense of fatigue was not always on a day following his sleep problems. The examiner noted that he did not think that the Veteran had a sleep disorder which was causing his fatigue. The February 2009 VA examination report shows that the examiner opined that the Veteran's fatigue is related to his active service in the Southwest Asia theater of operations. The examiner noted that his rationale was based upon his review of the claims file and medical and subjective history. As noted above, the Veteran is a "Persian Gulf Veteran." His reported fatigue has not been attributed to any known clinical diagnosis. Even more importantly, the Veteran has consistently complained of problems with fatigue since his initial July 2002 examination, and a February 2009 VA examiner also related his fatigue to his Gulf War service. There is also no medical opinion that specifically states that the Veteran does not have a chronic disability manifested by fatigue that is related to his service in the Persian Gulf. In summary, based on all of the above, the Board also finds that the undiagnosed illness manifested by fatigue has been sufficiently linked by competent medical evidence to service, and that service connection for chronic disability manifested by fatigue is therefore warranted. Service connection - stomach and intestine pain The Veteran contends that he has stomach and intestine pain which is due to his service in the Southwest Asia theater of operations during the Persian Gulf War. Service treatment records do not show any treatment for or diagnosis of stomach or intestine pain. At his July 2002 VA examination, the Veteran reported that he had excessive flatus and very frequent mild upper abdominal dull pressure sensation. He indicated that these were not related to what he ate. He denied other symptoms like sharp pains, nausea, vomiting or reflux. He had an excellent appetite. He had no red blood in the stools or melena. On examination, the Veteran had some sensitivity in the lower quadrant of his abdomen. There was only vague sensitivity to pressure elsewhere, and bowel sounds were normal. The assessment was vague abdominal discomfort, excessive flatus and some left lower quadrant sensitivity to pressure on examination. The Veteran underwent an upper gastrointestinal series in conjunction with this examination, which was normal. At his February 2009 examination, the Veteran reported that he had a history of daily epigastric pain, which felt colicky and crampy. He indicated that the pain was moderate and lasted 13 to 24 hours. The pain was in the right and left upper quadrants and the right lower quadrant. The Veteran indicated he had periods of incapacitation due to stomach or duodenal disease four times per year. He indicated that he had gnawing and burning pain in his stomach daily or more often. The Veteran was also nauseated and vomited several times per week and had diarrhea on a weekly basis. The examiner opined that it was at least as likely as not that the Veteran's stomach and intestine pain were related to his service in the Southwest Asia theater of operations. The examiner based his opinion upon review of the claims file and medical and subjective history. The Board finds that the Veteran has met the criteria for entitlement to service connection for his stomach and intestine pain. The Veteran is a "Persian Gulf Veteran" and his stomach and intestine pain has not been attributed to any known clinical diagnosis. In addition, the Veteran has consistently complained of relevant symptoms, and a February 2009 examiner also related the Veteran's stomach and intestine pain to his Gulf War service. Moreover, there is no medical opinion that states that the Veteran does not have a chronic disability manifested by fatigue that is related to his service in the Gulf. Consequently, the Board also finds that the undiagnosed illness manifested by stomach and intestine pain has been sufficiently linked by competent medical evidence to service, and that service connection for chronic disability manifested by stomach and intestine pain is also therefore warranted. ORDER Service connection for disability manifested by excessive sweating is granted. Service connection for disability manifested by fatigue is granted. Service connection for disability manifested by stomach and intestine pain is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs