Citation Nr: 1304294 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 06-24 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to December 1974 and from April 1975 to April 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Although multiple issues were being developed for appellate review, the Veteran withdrew all issues except service connection for chronic fatigue syndrome in September 2011. See 38 C.F.R. § 20.204 (2012). He also withdrew his request for a hearing before a Member of the Board at that time. See 38 C.F.R. § 20.704(e) (2012). In April 2012, the Board remanded the issue on appeal for additional development. The claim has been returned to the Board and, as discussed below, is ready for appellate review. Following transfer of this appeal to the Board in November 2012, the Veteran submitted additional evidence, namely, a written statement, to the Agency of Original Jurisdiction (AOJ) which was then transferred to the Board. Pertinent to this appeal, the November 2012 statement was accompanied by a waiver of initial review by the AOJ. See 38 C.F.R. § 20.1304 (2012). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Although the Veteran's service personnel records indicate he served in support of Operation Desert Shield/Storm, there is no evidence that such service was in the Southwest Asia theater of operations. 2. There is no competent evidence indicating the presence of chronic fatigue syndrome at any point pertinent to this appeal. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this case. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2004 and July 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The July 2006 letter also notified the Veteran of how VA determines the disability rating and effective date. The claim was most recently readjudicated in an October 2012 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, including obtaining service and post-service treatment records pertaining to his claimed chronic fatigue syndrome. Pursuant to the Board's April 2012 remand, VA has also afforded the Veteran a VA examination that resulted in a report containing sufficient evidence by which to make a determination regarding the issue of service connection. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Analysis The Board has reviewed all the evidence in the Veteran's claims file and the electronic, paperless Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim herein decided and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). On his initial application for benefits, the Veteran indicated that he had been experiencing "chronic fatigue" since approximately 1988. He described being tired all the time and indicated that he had difficulty sleeping due to pain. In subsequently-dated statements, the Veteran noted that he sought evaluation of his fatigue by multiple physicians, including a rheumatologist and a mental health professional, and that the former had diagnosed him with chronic fatigue syndrome. See, e.g., VA Form 9 dated July 14, 2006. More recently, the Veteran submitted statements indicating that his fatigue is due to restless sleep that is directly attributable to chronic pain associated with a number of his service-connected disabilities, including the lumbar spine, left lower extremity, and depression/anxiety. Pertinent VA law and regulations provide that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for a disability that is proximately due to or aggravated by an already-service-connected disease or injury. See id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In either case, such a determination requires a finding of current disability at some point pertinent to the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that under 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.317 (2012), compensation is also warranted for a Persian Gulf veteran who served in the Southwest Asia theater of operations and who exhibits objective indications of a "qualifying chronic disability" that became manifest at any time prior to December 31, 2016. A qualifying chronic disability is either an undiagnosed illness or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome. Id. In this case, the Veteran's separation document (DD Form 214) reflects that he served in support of Operation Desert Shield/Storm from August 1990 to April 1993. Other personnel records, however, fail to indicate that any of his service was in the Southwest Asia theater of operations. See 38 C.F.R. § 3.317(e)(2). Rather, a May 1993 summary of service denotes overseas assignments in Korea, Thailand, Spain, and Japan. The Board further notes that the Veteran himself denied that he served in the Persian Gulf on multiple applications for benefits and during a May 2012 VA examination. Under these circumstances - i.e., no service in the Southwest Asia theater of operations - the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not for application. Review of service treatment records from the Veteran's active duty service reflects no mention of chronic fatigue problems. There are a few service treatment records that show complaints of myalgia, dizziness, and fatigue, but the assessments reveal that such symptoms were associated with acute upper respiratory infections. The Veteran's October 1992 Report of Medical History at retirement is also negative for any chronic fatigue complaints. Post-service medical evidence shows that in June 2000 the Veteran reported to his primary care physician that he experienced ongoing fatigue occurring around mid-morning that had been present for several years. The Veteran noted that this fatigue had initially improved following some morning diet changes, but that the fatigue now persisted regardless of diet. The assessment was episodic fatigue. Primary treatment records show continued complaints of fatigue without a diagnosis of a chronic disability. In 2004, the Veteran underwent evaluation by an audiologist and a cardiologist for a number of complaints, including dizziness, poor vision, and fatigue. No pathology was identified, however, during the cardiac evaluation, the Veteran indicated that he associated his tiredness with poor sleep due to leg and back pain. The Veteran eventually sought consultation by a rheumatologist, Dr. Ahmad. The December 2005 report indicates a history of polyarthralgias, chronic spinal discomfort, paresthesias, and chronic fatigue with multiple work-ups negative for evidence of anemia, vitamin B-12 or folic acid deficiencies, or significant endocrinopathies. Following a history and physical examination, Dr. Ahmad's assessment included "chronic fatigue, etiology unclear" and "sleep disturbance." Follow-up reports show that Dr. Ahmad continued to assess the Veteran as having "chronic fatigue with sleep disturbance, probably part of chronic pain syndrome." The Veteran's tiredness was also noted to be related to chronic fibromyalgia syndrome. VA treatment records dated since February 2006 show an ongoing active problem of "other malaise and fatigue." The Veteran continues to report sleep disturbances associated with leg and back pain, as well as stress and anxiety. A March 2010 mental health VA examination report notes that the Veteran's reported sleep pattern is typical of an individual with depression. During a July 2009 Disability Determination Examination, the Veteran indicated that he has chronic fatigue due to poor sleep that is related to chronic pain. The foregoing evidence of record does not indicate that the Veteran has been diagnosed with chronic fatigue syndrome. Nevertheless, the Board notes that the Veteran is competent to report his own symptoms (i.e., chronic pain and fatigue), or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of medical diagnosis for disability not capable of lay observation such as chronic fatigue syndrome are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Thus, to assist the Veteran in the development of his claim, in April 2012, the Board remanded this appeal for the purpose of obtaining a VA examination regarding the existence and etiology of claimed chronic fatigue syndrome. The resultant May 2012 examination report reflects that, following a review of the claims file and an examination, it was the examining physician's opinion that the Veteran does not meet the criteria for chronic fatigue syndrome. Notably, the examination report indicates that the Veteran himself denied a diagnosis of chronic fatigue syndrome by any doctor or clinician. Rather, he reported being diagnosed with and treated for major depressive disorder; he also noted frequent symptoms of dizziness and lightheadedness which his mental health provider had related to medication use. In providing an assessment, the examining physician noted that there are ten signs/symptoms associated with chronic fatigue syndrome and that an individual must demonstrate at least six to meet the criteria for chronic fatigue syndrome. Although the Veteran endorsed generalized weakness, fatigue, neuropsychologic symptoms, headaches, and sleep disturbances, the examiner noted that at least two of these - neuropsychologic symptoms and headaches - had previously been attributed to known clinical diagnoses for which service connection was already in effect. Furthermore, the examiner indicated that the Veteran was being actively treated for a number of medical issues and that the side effects for many of his medications included dizziness, drowsiness/fatigue, generalized weakness, and lightheadedness. The examiner expressed sincere belief in the Veteran's complaints, but found no evidence that his reported symptoms were associated with a chronic disability (other than those previously service-connected), including chronic fatigue syndrome. The Board is sympathetic to the Veteran's situation. As indicated, however, the competent medical evidence currently of record fails to demonstrate a current disability of chronic fatigue syndrome. Rather, it demonstrates that he has continued to complain of symptoms of fatigue which are related to chronic pain and sleep disturbances that are part of his already-service-connected psychiatric and physical disabilities. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer, 3 Vet. App. at 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes). In this case, as there is no competent evidence of a current disability of chronic fatigue syndrome, there is no basis upon which to establish service connection. Accordingly, the claim for service connection must be denied. See Degmetich, 104 F.3d at 1328. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for chronic fatigue syndrome is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs