Citation Nr: 1108350 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 06-04 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic disability exhibited by muscle pain and fatigue claimed as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Young INTRODUCTION The Veteran had active military duty from September 1990 to March 1991 in Southwest Asia during the Persian Gulf War. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2008, the Veteran testified before a Decision Review Officer at the RO. In August 2009, the Veteran testified during a video conference hearing before the undersigned. Copies of the hearing transcripts are associated with the claims folder and have been reviewed. In November 2009, the Board remanded the matters for additional development. With respect to the claim decided herein, the Board finds that the Appeals Management Center substantially complied with the November 2009 remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT 1. Resolving all doubt in the Veteran's favor, he has an undiagnosed disability exhibited by fatigue and muscle pain attributable to Gulf War service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, an undiagnosed disability exhibited by muscle pain and fatigue is presumed to have been incurred during Gulf War service. 38 U.S.C.A. §§ 1110, 1117, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.317 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board has considered the Veteran's claims with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2003). Given the favorable disposition of the claim addressed below, any possible deficiencies in the duty to notify and to assist with respect to the current appellate review of the claims constitute harmless error and will not prejudice the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Service Connection At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that 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 September 30, 2011, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). 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. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed 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). The chronic disability must have become manifest either during active military 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 must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(b). For purposes of section 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) 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; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). The term "Persian Gulf Veteran" means 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)(1). The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2010). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. In the instant case, the Veteran's military records document that he served in Southwest Asia from October 1990 to March 1991, making him a Persian Gulf War Veteran. He contends that service connection for muscle pain and fatigue is warranted on the basis of his service in the Southwest Asia Theater of operations during the Persian Gulf War. At his personal hearing he indicated that the muscle pain and fatigue, which he experiences is manifested by weakness in his arms and legs. The Veteran's service treatment records are silent for complaints or findings of muscle pain and fatigue. Post-service medical and treatment records show that in May 2000 the Veteran underwent an electromyography (EMG) study. Those findings show there was no chronic changes of deinnervation seen in any of the screened muscles of the lower extremities or the left upper extremity. There was no fibrillation or positive wave activity seen in any of the screened muscles of the lower extremities of the left upper extremity. In a treatment note by the Veteran's private physician, an evaluation for fatigue is shown. The Veteran had a neurologic examination by a private physician in August 2000. At that time, he reported a history of bilateral upper and lower extremities with increased deep tendon reflexes in both upper extremities and both lower extremities. He reported that he has clumsiness from time to time with falls. Following examination the pertinent impression was a referral for unsteady gait and left sided weakness. In December 2000 the Veteran was seen for a VA neurology outpatient consultation. At that time, he reported falling and generalized weakness and pain in his extremities. There was no assessment rendered. It is noted in a March 2001 VA outpatient treatment report that the Veteran was seen for a follow-up of weakness and ataxia. Following examination the examiner rendered an impression of spinal cerebellar degeneration. The Veteran had a VA Gulf War Guidelines examination in November 2004. His chief complaints were spells and right-sided weakness. With respect to his complaint of right-sided weakness, he stated that while going to Saudi he had a head injury whereas he had transient loss of consciousness, and subsequent to that he developed some right leg and right arm weakness and numbness for which he has not had a significant diagnosis. He also reported having significant fatigue and difficulty walking at night. He reported no pain, but primarily weakness. On physical examination the examiner noted that the Veteran required assistance to get from his wheelchair to the examination table and in doing so he [the Veteran] nearly fell. Following the examination the examiner diagnosed, in pertinent part, hemiparesis of unknown cause with severe disability. At his personal hearing in May 2008 the Veteran testified that his muscles hurt and sometimes they hurt so bad that his clothes touching them makes them hurt. Regarding the fatigue problem he testified "I can't get up to do nothing. I can't do nothing." He indicated weakness in his arms. He stated that the fatigue problem is not every day. He stated that "Some days I have good days that I can do stuff. I've got a shop I piddle around in." Hearing Transcript (Tr.), p. 9. The Veteran indicated that the fatigue problem is in conjunction with the muscle pain. He further indicated that the muscle and fatigue problems caused him to fall a lot. Tr., p. 10. At his Board video conference hearing in August 2009 the Veteran testified that he first started noticing symptoms of muscle pain in 1992 or 1993. Tr., p. 3. In February 2010, pursuant to the Board's November 2009 remand, the Veteran underwent a VA examination for the claimed disorders. The examiner noted review of the claims folder and other medical records. The examiner was asked to indicate whether there are objective indications of qualifying chronic disability manifested by muscle pain and fatigue that are not attributable to a known diagnosis. During the examination the Veteran reported that during service in the Persian Gulf, his unit was exposed to scud missile attacks. He reported that he was unable to do his mask and thereafter had increased coughing. He was seen at the TMC and was given an injection He reported he was possibly exposed to an unknown substance. He further reported that the Patriot Missile warning system went off and they did not have chemical sensors. He stated that they would "routinely [do] chemical suits." He stated that after his deployment he noticed a progressive weakness. He reported that he had been seen by multiple neurologists and diagnosed with spinal cerebelar degeneration. The Veteran denied any diagnosis of chronic fatigue syndrome; he reported generalized muscle aches and weakness. It was noted however that the Veteran reported that his fatigue was severe. The Veteran reported that debilitating fatigue is constant. He denied any history of fibromyalgia. Following physical examination, the examiner's assessment, in pertinent part, was fatigue and myalgias of unknown etiology. The examiner commented that the Veteran complains of generalized fatigue and myalgias. The examiner noted that he was unable to specify the exact etiology of the Veteran's fatigue and/or myalgias. He stated that the Veteran has multiple medical problems, which could likely contribute or cause some of the symptoms. He opined that he is unable to link the Veteran's symptoms of myalgias and fatigue with his active duty service from 1990 to 1991; and therefore, it is not at least as likely as not that the Veteran's current symptoms had its onset in service or are related to a disease or injury during active duty service. The examiner noted further that on review of the medical records the Veteran did not have any supporting documentation of fatigue/myalgias, chronic fatigue or undiagnosed illness symptoms during active duty service. Resolving all doubt in the Veteran's favor, service connection for an undiagnosed illness exhibited by muscle pain and fatigue is warranted. The Veteran's claimed disorders satisfied the criteria for a qualifying chronic disability under 38 C.F.R. § 3.317(a)(2)(C)(4) because they have existed for six months or more and were manifested during the presumptive period. Resolving all doubt in the Veteran's favor, they have been manifested to a degree of 10 percent since service. Further, the Board finds that the Veteran is competent to report observing objective signs and symptoms, such as muscle pain and fatigue, which are capable of lay observation. Gutierrez, 19 Vet. App. 1. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). His testimony in this respect is unrebutted and credible. In the February 2010 examination report, the examiner's assessment was the Veteran had fatigue and myalgias of unknown etiology. It was suggested that some of the symptoms could be due to known diagnoses, but the examiner did not attribute these signs or symptoms to a known clinical diagnosis. Although VA examiner in February 2010 opined that there was no nexus between the Veteran's fatigue and myalgia and active duty service, his inability to attribute the symptoms to specific diagnoses does not amount to a rebutting of the presumption that such symptoms are related to service. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a) (2) (i) (B) (2). As such, the Board finds that the criteria for entitlement to service connection for undiagnosed illness manifested by muscle pain and fatigue are met. ORDER Service connection for undiagnosed illness exhibited by muscle pain and fatigue is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs