Citation Nr: 1303181 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 06-27 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an undiagnosed illness, claimed as fatigue, insomnia, and a gastrointestinal disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from August 1963 to July 1967 with the United States Navy, and also service with the Air National Guard from July 1989 to December 2001. The Veteran had a period of service from March 19, 2000 to May 19, 2000 in the Kingdom of Saudi Arabia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Reno, Nevada Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in August 2010 and December 2011, when they were remanded for further development. The Board notes that the Veteran filed a claim of entitlement to service connection for insomnia, fatigue, and a gastrointestinal disorder, as separate disabilities, caused by an undiagnosed illness. A review of the records indicates that the Veteran's fatigue, insomnia, and gastrointestinal disorder are symptoms of an undiagnosed illness disability, rather than separate disabilities. The Board has recharacterized the issue accordingly. Additionally, the Board notes that in the December 2011 remand, the issues of entitlement to service connection for an acquired psychiatric disability, a pectoralis disability, and a bilateral hand disability were remanded for further development. A review of the record shows that in a November 2012 rating decision, the Veteran was granted entitlement to service connection for his acquired psychiatric disability, his pectoralis disability, and his bilateral hand disability, effective December 10, 2004. There is no indication that the Veteran has expressed disagreement with the disability ratings assigned in that decision. Therefore, this is considered a full grant of the benefits sought on appeal. The Board has limited its consideration accordingly. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran has an undiagnosed illness, manifested by fatigue, insomnia, joint pain, and gastrointestinal problems. CONCLUSION OF LAW The criteria necessary to establish service connection for undiagnosed illness have been met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Compensation may be paid to any Persian Gulf War veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C.A. § 1117. These may include, but are not limited to, fatigue headache, and joint pain. 38 C.F.R. § 3.317(b). Such chronic disability must have manifested either 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 no later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 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. 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) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms such as: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) irritable bowel syndrome (IBS); 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 multisymptom 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). Accordingly, under these regulations service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness (such as CFS, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either 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 December 31, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317; 76 Fed. Reg. 81,834, 81,835 (interim final rule December 29, 2011). Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). 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 Veteran seeks service connection for fatigue, insomnia, and gastrointestinal symptoms, claimed as due to an undiagnosed illness. The Veteran's Air National Guard personnel records show that he served in the Kingdom of Saudi Arabia from March 2000 to May 2000 and that he participated in Operation Desert Shield and Operation Southern Watch. Thus, for the purposes of this decision, the Board will assume that the Veteran had qualifying service in the Southwest Asia theater of operations as defined by 38 C.F.R. § 3.317. In August 2005 the Veteran was afforded a VA examination. At that time he was given a diagnosis of gastroesophageal reflux disease (GERD), but the examiner did not provide an opinion as to whether the GERD was related to the Veteran's active service. In January 2012 the Veteran was afforded a Gulf War VA examination. The Veteran complained of periodic abdominal pain and diarrhea about every two weeks, which lasted about one day. He reported the abdominal pain symptoms had been occurring for approximately 8 years and the examiner noted that the symptoms could possibly be attributable to irritable bowel syndrome. However, no such diagnosis was made. The Veteran reported nightly insomnia for the past 15 to 18 years and fatigability that had been chronic for approximately 5 years. He also reported joint pain in his elbows, bilaterally and that he regularly took over the counter Chondroitin and glucosamine to manage his joint pain symptoms. X-rays of the elbows did not show any osteoarthritic changes. X-rays did show focal calcifications in the lateral epicondylar soft tissues, bilaterally, which was consistent with chronic ligament or tendon injuries. The examiner noted that no such injuries were documented in the Veteran's service treatment records. After physical examination, review of the claims file, and interview of the Veteran, the examiner opined that the Veteran's reported symptoms, fatigue, insomnia, gastrointestinal symptoms, and joint pain in his elbows, when considered as a group of symptoms could be classified as a medically unexplained chronic multisystem illness. Therefore, the examiner opined, the reported symptoms represented an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service. As noted above, the Veteran has service in Southwest Asia during the Persian Gulf War and the Board therefore turns to an analysis of the claim under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117 outlined above. The evidence indicates that the Veteran has an undiagnosed illness, manifested by fatigue, insomnia, gastrointestinal symptoms, and joint pain. During his January 2012 VA examination, the Veteran indicated that the majority of his symptoms began five to 8 years earlier. Therefore, the Board finds that the Veteran's chronic disability resulting from an undiagnosed illness, manifested by fatigue, insomnia, gastrointestinal symptoms and joint pain, clearly manifested prior to December 31, 2016 as required under 38 C.F.R. § 3.317. Thus, having found that the Veteran has a chronic disability resulting from an undiagnosed illness, the questions that remain for consideration are whether the illness (1) is manifested to a degree of 10 percent or more under the applicable rating criteria, and (2) whether there is affirmative evidence that it was caused by a supervening condition or event. Here, the Board notes that there is evidence of record that indicates the Veteran's insomnia symptoms may be attributable to his service-connected psychiatric disability. However, the Board notes that the VA examiner considered this possibility, yet he still associated the Veteran's insomnia with his undiagnosed illness. Regardless of whether the Veteran's insomnia is a symptom of his service connected psychiatric disability or is a symptom of his undiagnosed illness, the Board finds that the Veteran's remaining symptoms still support a finding of undiagnosed illness. Therefore, in their implementation of this decision, the RO can make a determination as to whether it provides a better benefit to the Veteran to attribute his insomnia to his service-connected psychiatric disability or to his undiagnosed illness. There is no indication from the record that the Veteran's fatigue, gastrointestinal symptoms, and joint pain were caused by a supervening condition or event. While the VA examiner noted X-ray findings which were consistent with chronic ligament or tendon injuries in the Veteran's elbows, bilaterally, there is no documentation of any such injury of record. Turning to whether the Veteran's disability is manifested to a degree of 10 percent or more under the applicable rating criteria, the Board notes that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As there is no Diagnostic Code specifically for undiagnosed illness, the Board finds that the Veteran's symptoms may be rated as analogous to fibromyalgia under 38 C.F.R. § 4.71a, Diagnostic Code 5025, with symptoms inclusive of musculoskeletal pain and tender points, with associated fatigue, sleep disturbance, and irritable bowel symptoms. Under Diagnostic Code 5025, a 10 percent disability rating is warranted when continuous medication is required to control the disability symptoms. In this regard, the Board acknowledges that the Veteran has reported that he takes over the counter medication in order to manage his symptom of joint pain. The Board therefore finds that the Veteran's symptoms, requiring continuous medication for control, rise to at least a 10 percent rating under diagnostic code 5025. The post-service medical evidence, including the January 2012 VA examination, would support such a finding. In this regard, it is important to note that this decision is based, in much part, on the Veteran's credibility (his statements to doctors over time, and to the VA), which the Board has no reason to dispute. However, it is important for the Veteran to understand that any suggestion that the Veteran is embroidering his problems would have a severe impact on the evaluation of all her service connected disability evaluations. The Board finds no basis to dispute the Veteran's credibility, an important factor in the granting of this claim. Therefore, the Board finds that service connection for an undiagnosed illness, manifested by fatigue, insomnia, joint pain, and gastrointestinal symptoms is warranted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for an undiagnosed illness, claimed as fatigue, insomnia, and a gastrointestinal disorder, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs