Citation Nr: 1312480 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-12 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for flu-like symptoms, including headaches and sleep disturbance (previously claimed as Gulf War syndrome). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a personal conference hearing held before a Decision Review Officer (DRO). A copy of the transcript is of record. In September 2012, the Board remanded this matter to obtain VA treatment records and afford the Veteran a VA examination. Those actions have been completed and the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In a rating decision dated February 2013, the RO granted (1) service connection for undiagnosed muscle pain and weakness disorder; and (2) service connection for undiagnosed fatigue disorder. In a contemporaneous February 2013 supplemental statement of the case, the RO denied service connection for flu-like symptoms, including headaches and sleep disturbance as due to an undiagnosed illness. Accordingly, the claims for service connection for headaches and a sleep disturbance disorder as due to an undiagnosed illness remain on appeal. FINDINGS OF FACT 1. The Veteran served in Iraq during the Persian Gulf War. 2. The Veteran's headache disorder is associated with currently diagnosed chronic sinusitis. 3. The Veteran's sleep disturbance symptoms are associated with his service-connected dysthymic disorder and are considered in the evaluation of service-connected dysthymic disorder. CONCLUSION OF LAW The criteria for service connection for flu-like symptoms, including headaches and sleep disturbance have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a November 2006 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. The letter also provided information on establishing service connection for an undiagnosed illness associated with service in the Gulf War. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the November 2006 letter included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. VA must also make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. In connection with the current appeal, VA treatment records and copies of service treatment records from March 1988 to April 1990. Attempts to obtain the Veteran's complete service treatment records from the National Personnel Records Center (NPRC) have been made. In April 1997, it was determined by the NPRC that the records are unavailable and further efforts to seek such records would be futile. See the April 1997 Formal Finding letter and the March 2007 letter. The Board nevertheless recognizes that it has a heightened duty to explain its findings and conclusions because of the missing records and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Veteran was also afforded VA examinations in connection with his claim in January 2008 (chronic fatigue) and October 2012 (Gulf War Syndrome). The VA examiners reviewed the claims file, the Veteran's subjective history, and clinical findings and rendered an opinion with supportive rationale. The Board finds the opinions probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no contrary medical opinion or medical evidence in the record, and neither the Veteran nor his representative has identified or alluded to such medical evidence or opinion. Thus, the Board considers the opinions adequate. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) (West 2002); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's headaches and sleep disturbance disorders are not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including 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 not later than December 31, 2016, 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 claims based on undiagnosed illness, 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). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "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 Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct. 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). 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). A Persian Gulf Veteran is one who served in Southwest Asia (including Iraq) at any time since August 1990. 38 C.F.R. §§ 3.2, 3.317. Based upon a review of service records, the Board finds that the Veteran is a Persian Gulf Veteran. The DD Form 214 reflects that the Veteran had service in the Southwest Asia Theater of Operations beginning in September 1990. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Board has reviewed all the evidence in the Veteran's claims 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 a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Flu-Like Symptoms As noted above, in a rating decision dated February 2013, the RO granted (1) service connection for undiagnosed muscle pain and weakness disorder; and (2) service connection for undiagnosed fatigue disorder. In a February 2013 supplemental statement of the case, the RO denied service connection for flu-like symptoms, including headaches and sleep disturbance as due to an undiagnosed illness. Accordingly, the claims for service connection for headaches and sleep disturbance disorders as due to an undiagnosed illness remain on appeal. Headaches The Veteran reports that he suffers from headaches as a result of his exposure to chemical agents while serving in the Persian Gulf during service. Essentially, the Veteran contends that this headache disorder is related to Gulf War Syndrome, including as due to an undiagnosed illness. As noted above, based upon a review of service records, the Board has found that the Veteran is a Persian Gulf Veteran. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for a headache disorder as due to an undiagnosed illness. The Veteran's service treatment records were negative for a diagnosis of or treatment for headaches in service or within one year after discharge from service. The Board further finds that there is no competent and probative evidence of record demonstrating that the Veteran's headaches are related to an undiagnosed illness. In a January 2008 VA examination for chronic fatigue, the VA examiner reviewed the claims file, interviewed the Veteran, conducted a physical examination, and reviewed x-ray reports of the Veteran's sinuses. During the evaluation, the Veteran reported symptoms of generalized muscle aches, weakness, sleep disturbance, sore throat, and headaches. The VA examiner reported that sinuses showed opacity involving the lower half of the right maxillary antrum with a sharply demarcated polyp present. The January 2008 VA examiner diagnosed the Veteran with chronic sinusitis suggested by the polyp in the right maxillary antrum. The VA examiner also noted that the Veteran's headaches were "more likely than not" associated with chronic sinusitis. The Veteran was afforded another VA examination in October 2012 (Gulf War Syndrome evaluation). The VA examiner reviewed the claims file, interviewed the Veteran, and reported the Veteran's medical history, including the January 2008 VA sinus x-ray report. In this regard, the Veteran stated that his symptoms included pain on both sides of his head and pain in the back of his head. The Veteran reported that his headaches lasted less than one day. In sum, the October 2012 VA examiner opined that the Veteran's headaches were most likely related to his maxillary sinusitis and not caused by environmental exposure during the Gulf War. The Board further finds that the remaining medical evidence of record does not demonstrate that the Veteran's headache disorder is related to an undiagnosed illness or to any in-service event, injury, or disease, including service in the Gulf War. Rather, the January 2008 and October 2012 VA medical examinations, which the Board finds highly probative, indicate that the Veteran's headache disorder is associated with his currently diagnosed chronic sinusitis. The Board has considered the Veteran's allegations that he has headaches claimed as due to Gulf War Syndrome. 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to give evidence about what he experiences, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). . For these reasons, the Board finds that service connection for flu-like symptoms, including headaches (previously claimed as Gulf War syndrome) is not warranted. Sleep Disturbance Upon review of the evidence of record, the Board acknowledges that the Veteran has consistently reported symptoms of sleep disturbance. See VA examination reports dated March 2007, October 2005, January 2008, July 2010, January 2011, and October 2012. The Board finds; however, that the weight of the competent and probative lay and medical evidence of record indicates that sleep disturbance is a manifestation of currently service-connected dysthymic disorder. See August 2010 RO rating decision (granting service connection for dysthymic disorder). Accordingly, the Board need not address this as a separate and distinct claim because, as discussed in detail below, the psychiatric manifestations of sleep disturbance have been considered in the evaluation of the service-connected dysthymic disorder and to undertake any action to the contrary would constitute improper pyramiding. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Specifically, in a June 2010 VA mental disorder examination, the Veteran reported difficulty both falling and staying asleep. He indicated sleeping approximately four to five hours per night and reported feelings of fatigue due to a lack of sleep during the night. He also noted experiencing combat-related nightmares. The June 2010 VA examiner diagnosed the Veteran with dysthymic disorder, and indicated that the symptoms associated with the diagnosed disorder included sleep impairment. In a January 2011 posttraumatic stress disorder VA examination, the Veteran reported chronic sleep disturbances, dating back to his combat deployment in Iraq. He reported episodic insomnia, frequent nocturnal awakening, and troubling dreams with intense anxiety. The Veteran estimated that he averaged about four to five hours of sleep per night. Taking into consideration the Veteran's reported sleep impairment, in addition to other psychiatric symptoms, the January 2011 VA examiner diagnosed the Veteran with Axis I dysthymic disorder. As discussed in the previous section, and pursuant to the Board's September 2012 remand instructions, the Veteran was afforded a VA examination in October 2012 for Gulf War Syndrome. The Veteran reported sleep disturbance and fatigue. Upon reviewing the claims file and the Veteran's medical history, the October 2012 VA examiner opined that the Veteran did not have chronic fatigue syndrome and stated that the type of fatigue experienced by the Veteran was idiopathic or related to depression ( also known as dysthymic disorder). The Board has considered the Veteran's allegations that he has an disability manifested by sleep disturbance separate from the symptoms associated with the service-connected dysthymic disorder. The Board observes that 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to give evidence about what he experiences, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons discussed above, the Board finds that the Veteran's sleep impairment symptoms are associated with dysthymic disorder, and not Gulf War Syndrome, to include as due to an undiagnosed illness. The weight of competent and probative evidence does not demonstrate that the Veteran has an undiagnosed illness manifested by sleep disturbance or that he has chronic fatigue syndrome. While the October 2012 VA examiner indicated that fatigue was either idiopathic or due to depression, there was no conclusion that it is a qualifying chronic disability under 38 C.F.R. § 3.317 and the symptoms were also attributed to the service-connected dysthymic disorder. Further, the Board finds that manifestations of sleep disturbance have been associated with the service-connected dysthymic disorder and have been considered in the evaluation of service-connected dysthymic disorder, currently rated as 50 percent disabling. As such, the Board finds that service connection for flu-like symptoms, including sleep disturbance (previously claimed as Gulf War syndrome) is not warranted as this would constitute prohibited pyramiding. See 38 C.F.R. §4.14; Esteban, 6 Vet. App. at 261-62. ORDER Service connection for flu-like symptoms, including headaches and sleep disturbance (previously claimed as Gulf War syndrome) is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs