Citation Nr: 1307609 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-46 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left foot fracture. 2. Entitlement to service connection for a disability manifested by fatigue, including as due to undiagnosed illness. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active military service from September 1984 to March 1992. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony at a June 2011 hearing before the undersigned. A transcript of that proceeding is of record. (The issue of entitlement to service connection for chronic fatigue syndrome is addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran sustained left 4th and 5th metatarsal fractures during active military service. CONCLUSION OF LAW The Veteran has left 4th and 5th metatarsal fractures that are the result of injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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; 38 C.F.R. § 3.303. Service connection also 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). More generally speaking, service connection requires that there be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). The Veteran contends that he fractured his left foot in service and should therefore be service connected for it. In that regard, an October 1988 service treatment record indicates that the Veteran had an undisplaced fracture of his left foot at the base of his fifth metatarsal. By a May 1992 rating decision, service connection was awarded by the RO for fractures of the left 4th and 5th metatarsals. Compensation was denied because then-current impairment was not shown. A June 2009 report of contact indicates that RO personnel called the Veteran to inform him that his left foot disability was already service connected. The Veteran indicated that he wished to claim service connection for a right foot disability, which was subsequently denied in a June 2009 (unappealed) rating decision. In short, the Veteran has been service connected for these left foot fractures since the May 1992 rating decision granted the claim and assigned an effective date from March 21, 1992. Although a dismissal of his current appeal might consequently be in order because of the previous award of service connection, the Board finds that the claim should be granted in order to underscore for the RO the need to recognize that service connection has been in effect since 1992. ORDER Entitlement to service connection for left 4th and 5th metatarsal fractures is granted, effective from March 21, 1992. REMAND In his June 2009 claim, the Veteran indicated that he had chronic fatigue syndrome related to his Persian Gulf War service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012) ; 38 C.F.R. § 3.303 (2012) To establish service connection for a disability, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). For veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established for 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 December 31, 2016. 38 U.S.C.A. § 1117; 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. The law governing Gulf War diseases also codified the same list of signs and symptoms of an undiagnosed illness as had previously been included in 38 C.F.R. § 3.317. Signs or symptoms that may be manifestations of an undiagnosed illness or a chronic multi-symptom illness include the following, but are not limited to: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C.A. § 1117(g). In addition, under 38 C.F.R. § 3.317 , the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Previously, VA regulations listed three disabilities as medically unexplained chronic multi-system illnesses; chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. VA has amended its regulations to clarify that these are only examples and that a broader array of unspecified conditions could be medically unexplained chronic multi-system illnesses. 75 Fed. Reg. 61,995 (Oct. 7, 2010). The term "objective indications of a qualifying chronic disability" includes both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117, 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). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Hence, his own assertions may serve as support for the presence of symptoms supportive of the claimed conditions as part of a Gulf War Syndrome under 38 C.F.R. § 3.317. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(2)(5) . For VA compensation purposes, the diagnosis of chronic fatigue syndrome 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; and (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 longer 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. 38 C.F.R. § 4.88a. Chronic fatigue syndrome is rated under criteria set forth in Diagnostic Code 6354 provides ratings. The criteria provide that chronic fatigue syndrome includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 10 percent disability rating is assigned when the Veteran exhibits fatigue and other manifestations that wax and wane, but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. 38 C.F.R. § 4.88b. 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 Veteran is a Persian Gulf Veteran. The Veteran has submitted private treatment records indicating that he has complained of fatigue of a regular basis since at least August 1999. A May 2009 treatment note indicates, "fatigue - ?CFS." There is no specific diagnosis of chronic fatigue syndrome in the claims file. A June 2009 letter from the Veteran's physician indicates that the Veteran has persistent daily fatigue that is sometimes excessive. The Veteran was afforded a VA examination in November 2009. The examiner indicated no undiagnosed illness/gulf war syndrome on examination. The examiner indicated that there was no new onset of debilitating fatigue that was severe enough to reduce or impair average daily activity below 50 percent of the patient's pre-activity level for a period of six months. (It is unclear how the examiner arrived at this conclusion.) The examiner also did not comment specifically concerning whether the Veteran's fatigue was a symptom of an undiagnosed illness or a chronic multi-symptom illness. Thus, the Veteran should be afforded an additional VA examination. The Veteran also indicated during his hearing testimony that his private physician had diagnosed him with chronic fatigue syndrome. The RO should attempt to obtain records from Dr. M. Accordingly, the case is REMANDED for the following action: 1. Request a release from the Veteran to obtain records from Dr. M. If the Veteran provides such release, obtain records from Dr. M. 2. Schedule the Veteran for VA examination to determine whether the claimed symptom(s) constitute an undiagnosed illness, a medically unexplained chronic multi-system illness, chronic fatigue syndrome, or are otherwise related to disability traceable to military service. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's symptomatology constitutes: (a) a medically unexplained chronic multi-system illness (i.e. a cluster of signs or symptoms; a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities). If so, the examiner should also describe the manifestations of the illness and its severity); (b) an undiagnosed illness; (c) a diagnosed disease or disability, specifically considering chronic fatigue syndrome, that otherwise had its onset in service or is related to a disease or injury in service. The examiner should provide an explanation for each opinion. If an examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. (The absence of evidence of treatment for the claimed conditions in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.) 3. If the benefit sought on appeal remains denied, the Veteran should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs