Citation Nr: 1018673 Decision Date: 05/20/10 Archive Date: 06/04/10 DOCKET NO. 07-15 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of Lyme disease. 2. Entitlement to service connection for residuals of mononucleosis. 3. Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Custody of the file was subsequently transferred to the VA RO and Insurance Center in Philadelphia, Pennsylvania, which is currently VA's Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had Lyme disease and mononucleosis during active service but has had no residuals thereof since discharge from service. 2. The Veteran has not had chronic fatigue syndrome, as defined by VA, during or since active service. CONCLUSIONS OF LAW 1. The Veteran does not have residuals of Lyme disease that are due to or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). 2. The Veteran does not have residuals of mononucleosis that are due to or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). 3. The Veteran does not have chronic fatigue syndrome that is due to or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 4.88a (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts entitlement to service connection for residuals of Lyme disease, residuals of mononucleosis and chronic fatigue syndrome. The Board will initially discuss certain preliminary matters preliminary matters and will then address the legal criteria and the facts of the case at hand. I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In November 2005 the Veteran was provided letter advising her of the elements required to support a claim for service connection but not including the effective-date and disability-rating elements. She was informed of the effective-date and disability-rating elements by a letter in May 2007 concurrent with the Statement of the Case (SOC); the Veteran had ample opportunity to respond before the claim was certified to the Board for appellate review. Where there is a timing defect in a case (i.e., where the appealed rating action precedes adequate VCAA notice) VA may cure the timing defect through compliance via proper remedial measures, such as the issuance of compliant VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The readjudication may come in the form of the issuance of a SOC following the issuance of the VCAA notice. Mayfield v. Nicholson, 449 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board accordingly finds at this point that the Veteran has been provided appropriate VCAA notice. The Board also finds VA has complied with its duty to assist the Veteran in the development of her claims. The RO has obtained service treatment records (STRs) and treatment records from those VA providers identified by the Veteran as having relevant medical evidence; neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate any of the claims and the Board is also unaware of any such evidence. The Veteran was advised of her entitlement to a hearing before the RO's DRO or before the Board, but she did not request such a hearing. The Veteran has also been afforded an appropriate VA examination. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and not prejudicial to the Veteran. The Board will accordingly address the merits of the claims for service connection for cervical spine disorder and dental disorder. II. Analysis General legal principles regarding service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, direct service connection may not be granted without medical evidence of a current disability; medical evidence, or in some circumstances lay evidence, of in- service incurrence or aggravation of a disease or injury; and, a link, established by medical evidence, between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself in service (or within the presumptive period under 38 C.F.R. § 3.307) and the veteran currently has the same condition; or (2) a disease manifests itself in service (or within the presumptive period) but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) Service Connection for Residuals of Lyme Disease and Mononucleosis The Veteran presented to the 10th Aeromedical Squadron (AMDS) in September 1999 complaining of sore throat and feeling very "run down." The clinical impression was "viral syndrome, rule out mono." A laboratory report by the 810th Medical Operations Squadron (MDOS) in September 2002 was positive for mono. However, a subsequent laboratory report by the 305th Medical Group in September 2003 was negative for mononucleosis. A laboratory report by the 305th Medical Group in July 2004 was positive for acute Lyme disease, treated with doxycycline for 30 days; however, a March 2005 letter from Drexel College University of Medicine reflects an impression that the positive impression for Lyme could be false due to prior infectious mononucleosis. Further laboratory testing was recommended. The Veteran had a VA general medical examination in December 2005; the examiner reviewed the claims file with associated service treatment records (STRs). The examiner noted the Veteran had been treated in service for mononucleosis in 2002 and Lyme disease in 2004. He stated he found no residuals of those diseases on examination of the Veteran. As noted, the Veteran was treated during service for Lyme disease and mononucleosis. However, that a condition or injury occurred in service alone is not enough; there must be a disability resulting from that condition or injury. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993). Existence of current disability must be shown by competent medical evidence. Degmetich, 104 F.3d 1328. "Current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection. Chelte v. Brown, 10 Vet. App. 268 (1997). In this case, although the Veteran is shown by STRs to have had Lyme disease and mononucleosis during service, the competent and uncontroverted medical evidence of record, in the form of the December 2005 VA examination, establishes that she does not have any residuals of those in-service disorders. Accordingly, the threshold requirement for service connection - medical evidence of a claimed disorder - is not satisfied. The Board acknowledges the case of McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. In this case, however, the evidence does not show any residuals of Lyme disease or mononucleosis at any time since the Veteran's discharge from service, so McClain does not apply. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence above the Board has considered the lay evidence offered by the Veteran in the form of her correspondence to VA. In her correspondence the Veteran asserts she was diagnosed during service with Lyme disease and mononucleosis and has had continuous symptoms of fatigue and joint pain since discharge from service. The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Further, lay testimony "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone, 8 Vet. App. 398, 405 (lay person competent to testify to pain and visible flatness of his feet); Espiritu v. Derwinski, 2 Vet. App. at 492, 494-95 (1992) (lay person may provide eyewitness account of medical symptoms). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998); Espiritu, 2 Vet. App. 492. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, the Veteran's belief that she has residuals of Lyme disease and/or mononucleosis is clearly refuted by the competent and uncontroverted medical opinion of record showing she has no such residuals. Based on review of the medical and lay evidence above the Board finds the criteria for service connection for residuals of Lyme disease and residuals of mononucleosis are not met. Accordingly, the claim must be denied. Service Connection for Chronic Fatigue Syndrome For VA purposes, the diagnosis of chronic fatigue syndrome (CFS) requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests of all other clinical conditions that may produce similar symptoms; and, (3) six or more of the following (i) acute onset of the condition, (ii) low-grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes,(v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or more after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. See 38 C.F.R. § 4.88a. In January 2003 the Veteran was treated by the 810th Medical Operations Squadron (MDOS) at Peterson Air Force Base for complaint of fatigue since November; it was noted she had been tested positive for mononucleosis the previous August. The Veteran reported she felt much better until November, and complained of increased stress in her life. The clinical impression was possible depressive episode related to stress. In April 2003 the Veteran presented to the Life Skills Support Center at Peterson Air Force Base complaining of sleep disturbance, fatigue and mild depressive symptoms. Past medical history was significant only for history of migraines. The clinical impression was partner relation problem. In July 2004 the Veteran complained to the 305th Medical Groups of chronic fatigue symptoms off-and-on since 2002; the clinical impression was chronic fatigue. In January 2005 the Veteran was worked up at Walter Reed Army Medical Center for urological complaints; review of systems indicated no constitutional malaise or fatigue. A March 2005 letter from Drexel College University of Medicine stated an impression that fatigue could be differential: hypothyroidism or sleep problems (restless leg syndrome versus sleep apnea). Recommendation was for further laboratory studies and sleep study. The Veteran had a consultation to Deborah Heart and Lung Center in August 2005; her chief complaint was "I am tired." A sleep study was conducted at Deborah Heart and Lung Center that found no current sleep disorder. Following interview and physical examination the examiner diagnosed chronic fatigue syndrome, probably related to Lyme disease. An Air Force treatment note, dated in September 2005, cites current medical issues of chronic fatigue/mononucleosis/Lyme disease, degenerative joint disease (DJD) lumbar spine, bladder repair, migraines, severe allergies, left hip bursitis and erythema dyschromicum perstans (EDP), a skin disorder. During subsequent interview in November 2005 an Air Force examiner noted the Veteran's multiple medical symptoms were stable and under treatment; however, the Veteran remained with chronic fatigue and sun exposure limitations that disqualified her for deployment. Because the Veteran was close to retirement she was not required to appear before a medical evaluation board (MEB) for retention in service. Current diagnoses were chronic fatigue, DJD, allergies with migraine and EDP. The examiner stated the Veteran had been seen in the rheumatology clinic for chronic fatigue syndrome and arthritis of the lower back, worsened by Lyme disease and with unresolved pain. The Veteran had a VA general medical examination in December 2005; the examiner reviewed the claims file along with associated STRs. The examiner asserted he had absolutely no idea where chronic fatigue was, since the Veteran had no clear-cut muscular weakness and had no difficulty making it through the ordinary activities of daily living, including being the mother of two young children. The Veteran offered that she associated her claimed CFS to her history of mononucleosis and Lyme disease; however, the examiner stated he found no CFS on examination. On review of the evidence above, the Board notes the Veteran was diagnosed during service with CFS; however, it does not appear that the in-service diagnosis of CFS comported with VA's definition of CFS in 38 C.F.R. § 4.88a. Specifically, diagnosis of CFS under 38 C.F.R. § 4.88a requires (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests of all other clinical conditions that may produce similar symptoms; and, (3) six or more of the ten characteristic symptoms. The provisions of 38 C.F.R. § 4.88a are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision had to be met). Compare Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement had to be met in order for an increased rating to be assigned). Accordingly, all three conditions listed in 38 C.F.R. § 4.88a must be met. In this case, careful review of the Veteran's STRs, comprising 18 envelopes of treatment records, does not show new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months, or the exclusion, by history, physical examination, and laboratory tests of all other clinical conditions that may produce similar symptoms. Finally, review of the STRs demonstrates that only four of the symptoms associated with CFS (acute onset, nonexudative pharyngitis, headaches and sleep disturbance) were present to some degree during active service; diagnosis of CFS as defined by VA requires at least six of the ten symptoms. The Board accordingly finds that CFS was not shown during active service. Further, the Board finds the competent and uncontroverted medical opinion of record, in the form of the VA examination in December 2005, specifically shows the Veteran does not have current CFS. Given that the Veteran did not have the claimed disorder in service or after discharge from service, it follows that service connection may not be granted under any theory of entitlement. The Board notes that the Veteran's claim for service connection for CFS overlaps her claims for service connection for residuals of Lyme disease and/or residuals of mononucleosis; specifically, she asserts she has had chronic symptoms of fatigue and joint pain since discharge from service, and wants to receive compensation regardless of what the underlying disorder(s) may be. See Clemons, 23 Vet. App. 1, holding that when a claimant makes a claim he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In this case the Veteran has been afforded a VA examination that has not identified any current underlying disorder for which service connection may be considered. Although the Veteran is competent to report her symptoms such as fatigue and pain during and since active service, symptoms alone do not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Based on review of the medical and lay evidence above the Board finds the criteria for service connection for CFS are not met. Accordingly, the claim must be denied. Burden of proof In arriving at the determinations above the Board has carefully considered the benefit-of-the-doubt rule. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case the evidence preponderates against the claims for service connection for residuals of Lyme disease, residuals of mononucleosis and CFS. The benefit-of-the-doubt rule therefore does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for residuals of Lyme disease is denied. Service connection for residuals of mononucleosis is denied. Service connection for chronic fatigue syndrome is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs