Citation Nr: 1312918	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  10-49 338	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for fatigue, to include as due to an undiagnosed illness.

2.  Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1986 to July 1991, which includes service in Southwest Asia from September 1990 to April 1991, and additional service in the Army National Guard. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of service connection for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

The medical evidence of record shows that the Veteran's fatigue is not due to undiagnosed illness and is a symptom of his service-connected PTSD.


CONCLUSION OF LAW

The criteria for service connection for fatigue are not met.  38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.14 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the Veteran in May 2010.  The letter informed the Veteran of what evidence was required to substantiate a service connection claim, to include as due to an undiagnosed illness, and of the Veteran's and VA's respective duties for obtaining evidence.  The letter also advised the Veteran of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

While the notice letter was not sent before the initial AOJ decisions in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Indeed, the Board notes that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, as he was informed throughout the appeal of his right to submit evidence in support of his claims and given ample time to respond.  In addition, the Board notes that the AOJ also readjudicated the Veteran's case by way of a statement of the case issued in December 2010 after the notice was provided.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to issue a final decision in this appeal as the timing error did not affect the essential fairness of the adjudication.

With regard to the duty to assist, the claims file contains available service treatment records, reports of post-service treatment, and reports of VA examinations.  The Board acknowledges that the RO made a formal finding of unavailability for portions of the Veteran's service medical records.  The record also indicates that the RO has made multiple attempts to obtain these records.  VA notified the Veteran about the unavailable service treatment records in a letter dated in February 2010.  Under these circumstances the Board finds that any additional attempts to obtain these records would be futile.  As the record indicates that the Veteran has been informed of the missing records, there will be no prejudice to him in proceeding to a decision on his claim.  The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

With respect to VA examinations, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran was provided a March 2010 VA examination in this matter.  The examiner reviewed the claims file and took a detailed history from the Veteran.  The examination report contains a fully reasoned explanation for the findings based on an accurate rendition of the facts of this case.  The Board therefore finds that the March 2010 VA examination report is adequate.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the claimant in developing the facts pertinent to her claim.  All known available evidence that would raise a reasonable possibility of substantiating her claim has been received and associated with the claims file.


Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131.  Generally, in order to prevail on the merits on the issue of service connection, there must be evidence of current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

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, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system.  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) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological 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.  38 C.F.R. § 3.317(b)(1)-(12) (as effective December 29, 2011) (emphases added).  

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, 2011; 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.

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).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran's DD Form 214 indicates that his primary military occupational specialty was that of chemical operations specialist, a duty which he performed for four years and eleven months.  

The Veteran's service treatment records contain no specific indication of complaints, treatment, or diagnosis of fatigue.

At a January 2010 VA examination the Veteran reported sleep disturbances secondary to back pain.

At a March 2010 VA examination, the Veteran indicated that he began to experience fatigue in 1991.  He reported that he has fatigue and has no energy to do activities that he used to do such as exercise or activities outside the house.  The examiner noted that his complaint of fatigue is a symptom of the spectrum of PTSD and is not a separate condition.  The examiner opined that the undiagnosed Gulf War syndrome, to include fatigue was not caused by or the result of military service.  

A March 2010 private psychological report shows that the Veteran experiences insomnia and experiences severe nightmares on a fairly regular basis.

A July 2010 VA outpatient treatment record shows the Veteran reported improved sleep with medication, and that he feels more rested in the morning although he still has nightmares.  The Veteran indicated that he is busy with family and outside activities such as fishing and boating.

At a November 2010 initial evaluation for PTSD examination, the examiner stated that the Veteran's poor sleep and nightly nightmares of combat are linked to his identified stressors. 

In December 2010, the RO granted service connection for PTSD with depression, with an evaluation of 30 percent disabling, effective August, 5, 2010.  This rating decision considered symptoms of depressed mood, chronic sleep impairment, and mild memory loss.

The Board has considered whether service connection is warranted under the provisions of 38 C.F.R. § 3.317.

The evidence does not show that the Veteran currently has an unexplained illness related to his reports of fatigue.  The Board acknowledges the Veteran's assertions that he believes he has an undiagnosed illness due to his service in the Gulf War.  In addition, the Board observes the lay statements addressing the Veteran's symptoms of fatigue since his period of service.  Lay persons are competent to report symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  However, laypersons are not competent to provide a probative opinion on a complex medical matter such as the diagnosis or etiology of a current disability or undiagnosed illness.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

The evidence of record shows the Veteran's symptoms of fatigue are the result of sleep loss related to his PTSD for which service connection has been established.  Chronic sleep impairment is contemplated by the rating criteria for PTSD and this has been considered in assigning a 30 percent disability rating for the service-connected PTSD, effective August 5, 2010.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).  The 30 percent rating criteria for PTSD compensates the Veteran for, among other symptoms, chronic sleep impairment.  Specifically, the March 2010 and November 2010 VA examiners attributed the Veteran's sleep impairment to his PTSD.  The Veteran is not shown to have fatigue which is manifested by symptoms other than those already considered in his current rating for the service-connected PTSD.  Therefore, duplicative or overlapping sleep impairment symptomatology cannot result in an additional rating under more than one diagnostic code.  38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Thus, because the evidence specifically indicates that the Veteran's complaint of fatigue is a symptom of a diagnosed disorder, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable.  

The Board has also considered whether service connection is warranted under the provisions of 38 C.F.R. § 3.303 for direct service connection.  

The Board notes that the Veteran has not been diagnosed with a current disability with respect to his complaints of fatigue.  The March 2010 examination examiner noted the Veteran's complaints of fatigue, but stated that this is a symptom of the spectrum of PTSD and not a separate condition.  Moreover, the March 2010 VA examiner opined that the Veteran's report of fatigue is not caused by or a result of the Veteran's military service.  Therefore, as there is no currently diagnosed disability, direct service connection is not warranted.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).

While lay person are competent to describe symptoms, they are not competent to provide a probative opinion on a complex medical matters such as the diagnosis or etiology of a current disability or undiagnosed illness.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  The Veteran is competent to state that he has experienced fatigue since service; however, he is not competent to provide a diagnosis for such symptoms.  VA has determined that the diagnosis of chronic fatigue syndrome must meet specific regulatory and medical criteria.  See 38 C.F.R. § 4.88a; see Jandreau v. Nicholson, 492 F.3d, 1372, 1377 (Fed. Cir. 2007).  Fatigue is not a chronic disability for VA purposes, and absent proof of the existence of the disability being claimed there can be no valid claim.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Furthermore, the Veteran has submitted no evidence to show that he currently has a disorder manifested by fatigue, other than symptoms associated with his service-connected PTSD.

In light of the above, the Board finds that service connection is denied.  The preponderance of the evidence is against the claim and, therefore, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for fatigue is denied.


REMAND

A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

The claims file contains evidence corroborating the Veteran's contention that he began experiencing migraine headaches during his active service.  A November 1987 service treatment records notes head trauma.  A March 1990 service treatment record reflects that the Veteran complained of constant headaches.  The Veteran has provided lay statements regarding his experience of migraine headaches since service discharge.  

In a March 2010 VA examination for undiagnosed Gulf War syndrome, the Veteran reported that he began to experience migraine headaches in 1991, and that these migraine headaches come in a cluster pattern every two to three weeks lasting three to four hours.  The VA examiner opined that this is a disease with a clear and specific etiology and diagnosis unrelated to service during the Gulf War.  Unfortunately, the examination is inadequate as it does not address the issue of in-service occurrence of migraine headaches.  When VA undertakes the effort to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  An opinion is needed regarding direct service connection.

The Board finds that an additional VA examination is warranted to determine whether the Veteran experiences a headache disability that is etiologically related to either his active duty service or a service-connected disability.  The AMC/RO should arrange an additional VA examination to clarify the nature and etiology of his claimed headache disorder on appeal.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination to ascertain the nature and etiology of any headache disorder that may be present.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.

The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any currently diagnosed headache disorder represents a known clinical diagnosis, and if so, whether it is as least as likely as not (50 percent probability or greater) that any diagnosed headache disorder is causally or etiologically related to his period of active service.  In doing so, the examiner should acknowledge and discuss (1) the findings made by the March 2010 VA examiner, (2) the Veteran's lay statements, (3) the November 1987 service treatment records noting a head trauma, and (4) the March 1990 service treatment record reflecting the Veteran's complaint of constant headaches. 

The examiner should also address whether the Veteran's headaches are due to or aggravated by his service-connected PTSD.

Supporting rationale must be provided with all requested opinions.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs