Citation Nr: 1032870 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 06-33 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic joint pain of the elbows, hips and knees. 2. Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted service connection for psoriasis, evaluated as noncompensable; and denied service connection for chronic joint pain and chronic fatigue syndrome. In January 2006, the Veteran filed a notice of disagreement. In September 2006, the RO issued a statement of the case with regard to the issues of entitlement to service connection for chronic joint pain and chronic fatigue syndrome, and entitlement to an initial compensable rating for psoriasis. In a subsequently issued September 2006 rating decision, the RO granted an initial rating of 10 percent for psoriasis. In his October 2006 VA Form 9 and a December 2006 Form 646, the Veteran indicated that he was only appealing the issues of service connection for chronic joint pain of the elbows, hips and knees and service connection for chronic fatigue syndrome. He has not submitted a substantive appeal with regard to the issue of an increased rating for psoriasis, and the issue has not been certified for appeal. Accordingly, the Board has not considered the issue at this time. However, the Veteran's representative listed the psoriasis issue in a brief presented to the Board in August 2010. This presentation could be construed as a claim for increase. The matter is referred to the Agency of Original Jurisdiction (AOJ). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran had qualifying service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. As such, service connection may be established for 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. 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. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multi symptom illness includes chronic fatigue syndrome and fibromyalgia. 38 C.F.R. § 3.317(a)(2)(i)(B). The Veteran contends that he has chronic joint pain involving the elbows, hips and knees, which has been attributed to fibromyalgia; and chronic fatigue syndrome, as a result of his service in the Persian Gulf. Service treatment records are negative for any complaints, treatment or diagnosis related to chronic joint pain or any associated disorder or chronic fatigue syndrome, but during VA examination in September 2004, the Veteran reported right hip pain which started about 1991 and denied any precipitating injury. He complained of daily hip pain, worse in the morning, which improved throughout the day with activity and was aggravated by cold and damp weather. He also reported standing at work for prolonged periods of time in his role as a Post Office worker. The Veteran also reported that he underwent left knee meniscus surgery in 1978. He complained of left knee discomfort, worse on the left, which improved with exercise and movement. The Veteran also complained of pain in the elbows which improved with repetitive movement. The impression was bilateral hip pain, elbow pain, without any significant limitation of motion. X-rays of the knees showed mild degenerative changes, which the examiner noted were unremarkable for the Veteran's age. X-rays of the elbows showed no evidence of significant arthritic change or joint effusion; good maintenance of articular cartilage thickness, bilaterally; and a small amount of calcific density projecting along the lateral epicondylar margin, which the examiner noted was insignificant for the Veteran's age. X-rays of the hips were unremarkable. The examiner did not give an opinion as to whether the Veteran's diagnosed joint pains or degenerative changes of the knees were related to his active military service. The Veteran also reported experiencing fatigue, starting in April 1991, while he was still on active military duty. He reported that it started gradually and got progressively worse within three to four weeks. He denied any fever, sweats, muscle aches, headaches, or neuropsychological symptoms, and there were no palpable lymph glands. He did complain of multiple joint discomfort, as noted above. The Veteran reported that he slept about six hours a night, that his fatigue had not caused him to miss any time from work, but he was too tired to golf or run. He also reported working the night shift as a postal worker in a position that required him to stand most of the time. The examiner concluded that the Veteran did not meet the criteria for chronic fatigue syndrome set forth by the AMA principles. Treatment records from C.P., M.D. show that in May 2005, the Veteran was seen for complaints of chronic muscle pain and chronic joint pain, for which he reported taking Tylenol and Advil as needed; low energy level, fatigue and tiredness. On physical examination of the extremities, he reported generalized joint pain, muscle pain, no joint swelling, no focal weakness, and no sensory deficits. There was no edema, no clubbing and no cyanosis. Strength was 5/5, and he had normal, symmetric joints. In addition, he demonstrated full passive range of motion at the knees, elbows, wrists, hip and ankle. The assessment was chronic fatigue syndrome/fibromyalgia. In June 2005, the Veteran reported feeling much better; that his previously reported pains were almost gone; and that he was sleeping better and had more energy. He also reported using Celebrex occasionally. The Veteran also indicated that he had been seen by another doctor who informed him that he may have hemochromatosis, but he was not given a follow up evaluation. On physical examination, there was no joint pain, no joint swelling, no focal weakness and no sensory deficits. There was also no edema, no clubbing and no cyanosis. Strength was 5/5 in all 4 extremities, and joints were normal and symmetric, with full passive range of motion at the knees, elbows, wrists, hips and ankle. The assessment was chronic fatigue/fibromyalgia, improved with medication. In September 2005, the Veteran reported again that he was feeling much better with his medication; that his previously reported joint pains were almost gone; and that he was sleeping better and had more energy. Physical examination findings were the same as before, in June 2005, and the examiner's assessment was the same. In March 2006, the Veteran reported that his pains were well controlled with medication and that he felt good. On physical examination, he again reported no joint pain, no joint swelling, no focal weakness and no sensory deficits. There was no edema, no clubbing and no cyanosis. Strength in all 4 extremities was 5/5, and his joints were normal and symmetric, with full passive range of motion at the knees, elbows, wrists, hips and ankle. The examiner's assessment was chronic fatigue/fibromyalgia, and he noted that the Veteran was doing well on medication. In a December 2006 statement, C.P., M.D. indicated that he had treated the Veteran for almost two years, and that he carried a diagnosis of fibromyalgia and chronic fatigue syndrome. The claims folder only contains records dated from May 2005 to March 2006. VA has a duty to obtain relevant treatment records reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2009). An examination is needed to determine whether the Veteran meets the criteria for diagnoses of chronic fatigue syndrome or fibromyalgia, and if so, whether those disabilities have been present to a degree of 10 percent at any time during the appeal period or had their onset in service. Accordingly, the case is REMANDED for the following action: 1. Take the necessary steps to obtain all records of the Veteran's treatment for fibromyalgia (joint pains) and chronic fatigue syndrome that are not already of record from Dr. C.P. If the Veteran fails to provide necessary releases, he should be advised to submit the records himself. If VA undertakes to obtain the records, the Veteran should be advised of what records are obtained. 2. Schedule the Veteran for a VA examination to determine whether the Veteran has met the criteria for a diagnosis of fibromyalgia or has joint pains as manifestations of an undiagnosed illness. The claims folder should be made available to the examiner for review prior to the examination and the examiner is requested to acknowledge such review in the examination report or in an addendum. The examiner should answer the following questions: Does the Veteran meet the criteria for a diagnosis of fibromyalgia? Does the Veteran have joint pain as a manifestation of an undiagnosed illness? If there is a diagnosis to explain any reported joint pain, what is the diagnosis? Did any disability of the joints as likely as not have its onset in service? What have been the manifestations of any joint condition since the Veteran's current claim? The examiner is specifically asked to conduct any necessary tests and/or studies. The examiner should provide a rationale for these opinions. If an answer cannot be provided without resort to speculation the examiner should provide a reason why this is so, and note whether there is any additional evidence that would permit an answer to be provided. 3. Schedule the Veteran for a VA examination to determine whether the Veteran has chronic fatigue syndrome, and if so, whether it has been present to a degree of 10 percent, or had its onset in service. The claims folder should be made available to the examiner for review prior to the examination and the examiner is requested to acknowledge such review in the examination report or in an addendum. The examiner is specifically asked to conduct any necessary tests and/or studies. The examiner should answer the following questions: Has the Veteran met the criteria for a diagnosis of chronic fatigue syndrome at any time during the current appeal (if the Veteran has not meet these criteria, the examiner should not those criteria that are not met)? If the Veteran has met the criteria for a diagnosis of chronic fatigue syndrome at any time during the current appeal, what have the symptoms been? Did chronic fatigue syndrome have its onset in service? If the Veteran does not meet the criteria for a diagnosis of chronic fatigue syndrome, does he have an undiagnosed illness manifested by fatigue, and is so, what are its symptoms? Does the Veteran have a diagnosed illness other than chronic fatigue syndrome and is it related to service? The examiner should provide rationales for all opinions. If an answer cannot be provided without resort to speculation the examiner should provide a reason why this is so, and note whether there is any additional evidence that would permit an answer to be provided. 4. The AOJ should review the examination reports to insure that they contain all of the information and opinions requested in this remand. 5. If any benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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. 2009). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).