Citation Nr: 1316784 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 96-29 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic fatigue due to an undiagnosed illness or a medically unexplained multisymptom illness. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1958 to August 1961 and from June 1991 to January 1992, to include active service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the claim was subsequently transferred to the RO in Winston-Salem, North Carolina. The case was most recently before the Board in February 2013, at which time the Board requested a medical expert opinion pursuant to 38 C.F.R. § 20.901 (2012). In April 2013, after the opinion was obtained, the Board sent the Veteran a letter informing him that he had 60 days to respond with additional evidence or argument. See 38 C.F.R. § 20.903 (2012). Later in April 2013, the Veteran responded that he had no further argument or evidence to submit and wanted the Board to proceed with the adjudication of his appeal, and the Veteran's representative submitted a brief. Thus, the Board will proceed with the adjudication of the appeal. In July 2000, the Board referred a claim for service connection for hepatitis C to the RO for appropriate action. In September 2006, the Board also referred to the RO a claim for an earlier effective date for the award of service connection for fibromyalgia. It does not appear that these issues have been addressed. Therefore, they are again referred to the RO for appropriate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran is a Persian Gulf Veteran. 2. The Veteran has chronic fatigue syndrome that became manifest to a degree of at least 10 percent. CONCLUSION OF LAW Chronic fatigue syndrome is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317, 4.88a, 4.88b, Diagnostic Code 6354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes the Veteran has been provided all required notice for the claim for service connection for chronic fatigue syndrome. In addition, the evidence currently of record is sufficient to substantiate this claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012) in regard to this issue. The Veteran asserts that he has a disability manifested by chronic fatigue, either chronic fatigue syndrome or an undiagnosed illness manifested by fatigue. He maintains that any such disability is related to his second period of active service during the Persian Gulf War. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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). Additionally, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of 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, 2011. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). Persian Gulf veteran means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations, which includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e). For purposes of section 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness and (2) a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(a)(2). In addition, service connection may be presumed for certain infectious diseases even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.317(c). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of 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. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. A 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 multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Objective indications of 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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom 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). For purposes of section 3.317, 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)(4). Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; 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 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(a)(7). The Board notes that the definition for chronic fatigue syndrome for VA purposes is the following: (1) new onset of debilitating fatigue severe enough to reduce the 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 stage), (viii) migratory joint pains, (ix) neuropsychological symptoms, (x) sleep disturbance. 38 C.F.R. § 4.88a (2012). The Veteran's personnel records reflect service in Southwest Asia during the Persian Gulf War from July 1991 to November 1991. Thus, he is a Persian Gulf Veteran for the purposes of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The Veteran's service treatment records are negative for a diagnosis of chronic fatigue syndrome. There are no entries concerning complaints of or treatment for fatigue. An August 1993 VA treatment record is the earliest evidence of a report of fatigue by the Veteran. During the course of the claim, numerous physicians have reviewed the Veteran's case and have discussed whether the Veteran has chronic fatigue syndrome, but they have provided conflicting opinions. Notably, in January 1995, a VA physician diagnosed the Veteran with chronic fatigue, cause undetermined. In May 1999, an examining physician diagnosed the Veteran with chronic fatigue syndrome. There were subjective findings of fatigue, but no objective findings of fatigue. In January 2001, a VA physician indicated that the Veteran did not meet the criteria for chronic fatigue syndrome and that the symptom of fatigue was more likely than not due to hepatitis C. In January 2009, a VA physician provided diagnoses of fibromyalgia and chronic fatigue. The physician thought that several other causes contribute to chronic fatigue, namely depression, fibromyalgia, and past problems with hepatitis. The physician did not believe the fatigue was due to an undiagnosed illness. In February 2011, a VA physician found that the criteria were not met for a diagnosis of chronic fatigue syndrome. In September 2011, the same VA physician appeared to provide a diagnosis of chronic fatigue syndrome, but also found that it was at least as likely as not that the Veteran could have chronic fatigue syndrome versus fibromyalgia. Subsequently, in July 2012, the same VA physician found that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. To resolve this conflicting evidence, the Board requested a medical expert opinion pursuant to 38 C.F.R. § 20.901. In March 2013, A.T., M.D., provided the opinion. Dr. A.T. is a VA physician who is the Director of Primary Care and Associate Chief of Medicine at a VA Medical Center. Dr. A.T. reviewed the claims files in their entirety, including the opinions of the Veteran and his statements, the medical records, and the previous opinions regarding chronic fatigue syndrome. Dr. A.T. explained that the challenge of the case lies in the rigid definition being used for chronic fatigue syndrome because it is simply not possible to single out chronic fatigue syndrome as the only potential cause of the symptoms listed in the definition. As to whether the Veteran has, or has had, chronic fatigue syndrome, Dr. A.T. stated that there is no question as to the severity of the debilitating nature of this Veteran's fatigue. The level of his function has clearly declined significantly since his initial military service according to Dr. A.T. The chronicity has also exceeded six months and has been documented in his medical records and reports of VA examinations. Dr. A.T. noted that there is considerable overlap between chronic fatigue syndrome and other diagnoses that the Veteran has, including depression, fibromyalgia and hepatitis C, but did not believe that any of the diagnoses explains all of the Veteran's symptoms. Dr. A.T. also noted that the Veteran meets at least six of the ten symptoms set forth in 38 C.F.R. § 4.88a. Dr. A.T. further explained that the Veteran's symptoms of chronic fatigue syndrome have not resolved during the claims process. It was pointed out that while there were times when the symptoms were not noted in the Veteran's medical records, there did not appear to be any resolution ever documented. As to whether the Veteran's fatigue is attributable to an undiagnosed illness, Dr. A.T. stated that this was not so as the symptoms are attributable to the clinical diagnosis of chronic fatigue syndrome. Dr. A.T. explained that the nearly two-decade duration of symptoms would generally allow other diagnoses to come to the forefront as potential contributors to his symptom complex. It was noted that the Veteran does have the other diagnoses that potentially contribute to his fatigue symptoms. Dr. A.T. determined that hepatitis C is not the major issue with the Veteran because, even though fatigue can certainly be a symptom of chronic hepatitis C, the symptoms other than migratory joint pain would not be consistent with hepatitis C. Additionally, Dr. A.T. found that the Veteran's depression cannot be specifically linked to the onset of his symptomatology and would not relate directly to fatigue after exercise, headaches, or migratory joint pain. Dr. A.T. noted that there is considerable overlap between fibromyalgia and chronic fatigue syndrome. However, in the Veteran's case, the onset of his symptoms would be unusual for fibromyalgia alone. Dr. A.T. concluded that it is at least as likely as not that the Veteran has chronic fatigue syndrome in addition to his other recognized diagnoses. Dr. A.T. noted that it is not practical or possible for clinicians, even specialists, to always be able to separate out the specific components of chronic fatigue syndrome and how they may relate to other disorders. Dr. A.T. believed that this has led to the discrepancies in the case, but he also believed that it is at least as likely as not that this Veteran does indeed have chronic fatigue syndrome. The question of whether the Veteran has chronic fatigue syndrome is complex in nature. The Board finds that Dr. A.T.'s March 2013 opinion is the best evidence for determining the answer. Dr. A.T. reviewed the claims files, including all of the prior opinions concerning chronic fatigue syndrome. Dr. A.T. also provided a persuasive explanation as to why he believes that it is at least as likely as not that the Veteran has chronic fatigue syndrome and how the other diagnoses are differentiated. In view of this probative medical opinion evidence, the Board finds that the Veteran has chronic fatigue syndrome. According to 38 C.F.R. § 3.317(a)(2), chronic fatigue syndrome is a medically unexplained chronic multisymptom illness. Thus, chronic fatigue syndrome is considered a qualifying chronic disability under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Unlike service connection on a direct basis, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent evidence of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.317(a)(7); Gutierrez, 19 Vet. App. at 1. The Veteran's chronic fatigue syndrome may have become manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War as evidenced by his lay statements regarding an in-service symptom of fatigue. In any event, the Veteran's chronic fatigue syndrome became manifest to a degree of at least 10 percent after his Persian Gulf service. During the course of the claim, the Veteran has been prescribed medication for his symptoms, including Darvocet, Lorcet, and Lyrica. This more likely than not meets the criteria for a 10 percent rating, which requires that the symptoms be controlled by continuous medication. See 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2012) (rating criteria for chronic fatigue syndrome). Consequently, the criteria for service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are met. There is no affirmative evidence to the contrary as contemplated by 38 C.F.R. § 3.317(a)(7). Therefore, service connection for chronic fatigue syndrome is warranted. ORDER Entitlement to service connection for chronic fatigue syndrome is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs