Citation Nr: 1319715 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-22 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for tendonitis. 2. Entitlement to service connection for an undiagnosed neurological syndrome (also claimed as joint and muscle pain and numbness, left side body and foot with memory impairment, and repetitive motion syndrome). 3. Entitlement to service connection for chronic fatigue syndrome (also claimed as difficulty sleeping, chills, night sweats, chest pain, apathy, dizzy, headaches, lack of sexual desire, mood swings, and bloating). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran also submitted a notice of disagreement regarding the denial of entitlement to service connection for posttraumatic stress disorder (PTSD). In May 2009, the RO granted service connection for PTSD with depression and assigned a 30 percent evaluation from June 1, 2007. Therefore, the benefit sought on appeal has been granted in full, and no further consideration is necessary. In February 2013, a hearing was held before the undersigned Veterans Law Judge (VLJ) sitting at the RO. At the time of the hearing, the Veteran submitted additional evidence with a waiver of the RO's initial consideration. See 38 C.F.R. § 20.1304 (2012). The record was also held open for 60 days for the submission of additional evidence. To date, however, such evidence has not been received. The Virtual VA eFolder has been reviewed and contains relevant records, to include the transcript of the March 2013 travel board hearing. The issues of entitlement to service connection for radiculopathy of the bilateral lower extremities and entitlement to an evaluation greater than 30 percent for PTSD with depression have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War and is a Persian Gulf veteran. 2. The Veteran's service treatment records show numerous complaints related to his bilateral wrists, forearms, and elbows that were variously diagnosed. The preponderance of the evidence supports a finding that currently diagnosed repetitive motion syndrome of the bilateral upper extremities with bilateral elbow and wrist strains and left ulnar neuropathy is related to his active military service. 3. The Veteran does not have a confirmed diagnosis of chronic fatigue syndrome, but he has been shown to have an undiagnosed illness manifested by fatigue that has existed for more than 6 months and has become manifest to a compensable degree. CONCLUSIONS OF LAW 1. Repetitive motion syndrome of the bilateral upper extremities with bilateral elbow and wrist strains and left ulnar neuropathy was incurred during active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012). 2. The criteria for service connection for a disability manifested by fatigue due to an undiagnosed illness are met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 4.3, 4.7, 4.88a, 4.88b, Diagnostic Code 6354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claims for service connection. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Factual Background The Veteran's service treatment records show that he was seen in July 2003 for an evaluation of numbness of the left foot and hand. He indicated that the symptoms began two months earlier and that he awakened at night because of the upper extremity paresthesias. Following a physical examination and laboratory work, the physician stated that the Veteran had signs and symptoms that were consistent with compression injuries. There was also ulnar neuropathy at the elbow with the left being greater than the right, as well as mild right carpal tunnel syndrome. In December 2005, the Veteran was seen for various complaints, including easy fatiguing of the hands and forearms. The assessment was parasthesias, and he was referred to a neurologist. During active service, the Veteran was also evaluated by various outside or private providers. In February 2006, he was seen at North Star Neurology for paresthesias and back pain. Following an examination, the physician observed that he had several episodes of trauma that would affect his back and neck. It was also noted that he was ill in 2003 and had residual neurological symptoms. Medication was recommended to best manage his current pain syndrome. The Veteran was evaluated at the Tucson Neuroscience Center in June 2006. He reported experiencing aching in the arms that extended from the wrists upwards towards the elbows. There was also numbness and tingling in the hands and fingers. The impression included repetitive motion syndrome of the upper limbs and suspect soft tissue inflammatory pain with episodic peripheral nerve compressions due to positioning. There were no neurophysiologic findings of carpal tunnel syndrome or peripheral neuropathy, and nerve conduction studies and an electromyographic (EMG) evaluation were reportedly normal. However, a review of the corresponding report indicates that there was non-specific neurophysiologic evidence of bilateral C-7 radicular compromise, as evidenced by absent H-reflexes, and mild neurophysiologic evidence of left ulnar nerve entrapment at the elbow, as evidenced by proximal slowing as compared to left ulnar and distal velocities. An August 2006 report from the Tucson Neuroscience Center indicates that laboratory studies were unremarkable and that there was no evidence of systemic inflammatory process and/or toxic-metabolic abnormality. The impression included repetitive motion syndrome of the upper limbs that was episodically symptomatic. The examiner noted the Veteran's belief that his possible aches and pains were related to anthrax immunizations, but indicated that he could not speak well to this issue. The physician did not arrange for any additional active neurologic care. The Veteran was evaluated at a base clinic in December 2006. He presented with persistent arm pain and fatigue for four years without numbness or tingling. There were negative EMG studies, and it was noted that a neurological disorder was ruled out by the neurologist. The assessment was myalgia and myositis. The Veteran was also evaluated by Dr. B.W. in January 2007. He reported experiencing forearm heaviness and achiness in his forearms for six years, which had gradually worsened. He indicated that he had some occupational exposure to solvents, explosive-like materials, and uranium during Desert Storm, and he felt this might account for his symptoms, as they seemed to start after he returned. Following an examination, the assessment was peripheral neuropathy, pain in multiple joints, long-term anti-inflammatory, and tendonitis not otherwise specified. The Veteran underwent a VA general medical examination in May 2007. The impression included unexplained joint pain, as well as anthrax shots with report of persistent generalized arthralgias and fatigue with no associated diagnosis. All laboratory tests were normal. The Veteran also underwent a VA neurological examination in May 2007. He reported that he developed symptoms of joint pain, night sweats, nightmares, insomnia, and upper extremity fatigue in 1992. On physical examination, there was mild diffuse weakness bilaterally in the upper extremities. The assessment was neuromuscular symptoms, including bilateral upper extremity weakness and left lower extremity numbness. The examiner noted that the Veteran had a history of depleted uranium exposure occurring during the destruction of military vehicles; however, this was not a recognized diagnosis based on medical literature review. In a November 2007 addendum, the neurological examiner stated that the Veteran's neurological symptoms did not stem from any recognized diagnosis. It was noted that extensive workups to date had been negative and that no neurologic diagnosis had been established. The Veteran underwent a VA joints examination in February 2008 during which he reported that his arms felt heavy and tired. X-rays of the bilateral elbows and bilateral wrists showed no significant abnormalities. Following a physical examination, it was noted that there was no evidence of tendonitis of the left wrist and bilateral elbows. There was a strain of the right wrist with no degenerative changes. In March 2008, the Veteran underwent a VA chronic fatigue syndrome examination. He reported that he feels tired from the moment he wakes up until he goes back to bed, and he stated that he feels a lack of needed energy throughout the day. There had been no improvement since he retired from service. He reported having debilitating fatigue that is constant or nearly so and lasting more than 12 months. The percentage of restriction of routine daily activities was reported as 30 percent. Following a physical examination and a review of test results, the Veteran was diagnosed with persistent generalized arthralgias and fatigue with no associated diagnosis. All diagnostic tests were within normal limits. The problem associated with the diagnosis was reported as chronic fatigue syndrome; however, the examiner stated that at least 6 of the 10 chronic fatigue syndrome diagnostic criteria were not met. The Veteran most recently underwent a VA examination in March 2012, which was an extensive examination involving multiple Disability Benefits Questionnaires (DBQ). The Board will highlight those pertinent to the issues currently on appeal. Regarding whether the Veteran had a peripheral nerve condition, the diagnoses related to the upper extremities included repetitive motion syndrome with diagnosis in approximately 1997 and left ulnar neuropathy with a date of diagnosis in 2006. The Veteran reported that he has had intermittent numbness and tingling in all the fingers in both hands since approximately 1997 with pain in the elbows, wrists, and hands. EMG/NCV testing in 2006 reportedly showed left ulnar nerve entrapment. On the DBQ for wrist conditions, the diagnosis was a bilateral wrist strain. The Veteran stated that he felt achy in all of his joints transiently every time he received an anthrax shot and indicated that persistent bilateral wrist pain began in approximately 1997. He also attributed the wrist pain to anthrax shots, but further stated that he was a vehicle mechanic and had repetitive movements and lifting of the upper extremities during his years of service. The Veteran reported that the wrist pain had worsened since it started and indicated that he had constant, moderate pain in both wrists. X-rays of the left wrist showed no significant arthritis. X-rays of the right wrist also showed no significant arthritis, but there was an ulnar negative variance. On the DBQ for elbow and forearm conditions, the diagnosis was a bilateral elbow strain. The Veteran reported having bilateral elbow pain beginning in approximately 1997 following anthrax shots. His reported history was as noted above. He also indicated that the elbow pain had worsened since it started and that he had constant, moderate pain in both elbows. X-rays showed no significant abnormality. The DBQ for hands and fingers noted a subjective complaint of bilateral hand pain. There was no current bilateral hand condition with normal physical examination and x-rays. The DBQ for chronic fatigue syndrome noted a diagnosis of chronic fatigue, which did not meet diagnostic criteria for chronic fatigue syndrome, with a date of diagnosis in 1991. The Veteran reported that he had had chronic fatigue since 1991, which he attributed to anthrax shots as well as environmental exposures in the Persian Gulf. The examiner noted that the Veteran has been diagnosed with sleep apnea and PTSD and commented that both of these conditions can be associated with fatigue. Continuous medication was not required for control of symptoms. Regarding whether the Veteran had any findings, signs, or symptoms attributable to chronic fatigue syndrome, the examiner noted debilitating fatigue, nonexudative pharyngitis, generalized muscle aches or weakness, and fatigue lasting 24 hours or longer after exercise. He exercises twice a week and following exercise, he is extremely tired, but is able to go to work and complete a full day's work. There was no cognitive impairment attributable to the claimed disability. The Veteran's symptoms were nearly constant, and the examiner indicated that the symptoms restricted routine daily activities to less than 50 percent of his pre-illness level. There were no periods of incapacitation. Following examination and completion of the DBQs, the examiner provided various opinions. Regarding the claim for an undiagnosed neurological syndrome also claimed as joint and muscle pain, the examiner stated: Repetitive motion syndrome of bilateral upper extremities, which is a diagnosable condition with a partially explained etiology. This condition is less likely than not related to any specific exposure event in Southwest Asia, as there is no research establishing a link between repetitive motion syndrome of bilateral upper extremities and such potential exposure. Bilateral wrist strain, which are diagnosable conditions with a partially explained etiology. This condition is less likely than not related to any specific exposure event in Southwest Asia, as there is no research establishing a link between wrist strain and such potential exposure. Bilateral elbow strain, which are diagnosable conditions with a partially explained etiology. This condition is less likely than not related to any specific exposure event in Southwest Asia, as there is no research establishing a link between elbow strain and such potential exposures. Subjective complaint of bilateral hand pain. There is no current evidence of a chronic disability pattern related to hand pain. Regarding the claim for numbness of the left side of body and foot, the examiner diagnosed left peroneal neuropathy. As discussed, a claim related to the lower extremities is currently pending. The examiner also diagnosed: Left ulnar neuropathy, which is a diagnosable condition with a partially explained etiology. This condition is less likely than not related to any specific exposure event in Southwest Asia, as there is no research establishing a link between ulnar neuropathy and such potential exposure. Regarding the claim for chronic fatigue syndrome, the examiner stated: Chronic fatigue, which does not meet diagnostic criteria for chronic fatigue syndrome. This is an undiagnosed condition. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection can also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which 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 December 31, 2016; and 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). A "qualifying chronic disability" includes an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2). Manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: fatigue; signs or symptoms involving skin; headache; muscle pain; joint pain; neurological signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of this section, "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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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)(3), (4). A qualifying chronic disability referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a)(5). Compensation shall not be paid under these provisions if there is (1) affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between a 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 a Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Initially, the Board notes that the Veteran's service personnel records show that he served in the Southwest Asia theater of operations during the Persian Gulf War. Thus, he is a Persian Gulf veteran. See 38 C.F.R. § 3.317(e). Undiagnosed neurological syndrome and tendonitis In April 2008, the RO denied service connection for an undiagnosed neurological syndrome (also claimed as joint and muscle pain and numbness, left side of body and foot with memory impairment, and repetitive motion syndrome) and tendonitis. The Veteran disagreed with the decision and subsequently perfected this appeal. At the outset, the Board observes that the RO combined multiple complaints and/or symptoms into a single issue. In the November 2012 supplemental statement of the case, the RO noted that several of the symptoms that the Veteran was claiming were already considered in the evaluation of his service-connected disabilities. The RO further noted that the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012). Nonetheless, they proceeded to adjudicate the issue as phrased. On review, the Veteran is currently receiving compensation for some of the claimed symptoms. For example, in regards to the joints, the Veteran is currently service-connected for a lumbar spine disability, a left knee strain, a right knee strain, and plantar fasciitis of the bilateral feet. Memory impairment has also been attributed to service-connected PTSD, and regarding the left side of the body and foot, there is a pending claim for radiculopathy of the lower extremities. Following review of the evidence, to include the Veteran's testimony, it appears that he is currently seeking service connection for his bilateral upper extremity symptoms, regardless of the diagnosis. At the February 2013 hearing, the Veteran testified that his complaints started as shoulder pain and then moved down to his elbows and hands. He stated that the doctors recognize the pain, but a diagnosis was eluding them. He also testified that the problems with his joints began during service and have continued since that time. On review, the preponderance of the evidence shows his claim is best characterized as repetitive motion syndrome of the bilateral upper extremities with bilateral elbow and wrist strains and left ulnar neuropathy. For the following reasons, the Board finds that service connection is warranted. See 38 C.F.R. § 3.303. Initially, the Board notes that the upper extremity symptoms have been attributed to known diagnoses and the undiagnosed illness provisions are not for application. The evidence of record shows that the Veteran complained of aching and pain in his both forearms, elbows, and wrists during service, and he has been variously diagnosed as having ulnar neuropathy and mild carpal tunnel syndrome, repetitive motion syndrome of the upper limbs, and tendonitis. The Veteran has had continuing complaints, and the most recent examination included diagnoses of repetitive motion syndrome, bilateral elbow and wrist strain, and left ulnar neuropathy. The Veteran's complaints during service were well documented. The Board acknowledges that these disabilities are not specifically listed as chronic diseases under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notwithstanding, the Veteran's complaints were variously diagnosed during service and the symptoms have continued to date. The Board notes that the Veteran is competent to report the onset and continuity of his symptoms, and his reports appear consistent with the evidence in both his military records and post-service records. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). To the extent a medical nexus is needed, the Board finds the March 2012 examiner's statements regarding date of onset, which were based on the Veteran's reported history as well as a review of the claims file review, to be sufficient to relate current disability to his military service. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current repetitive motion syndrome of the bilateral upper extremities with bilateral elbow and wrist strains and left ulnar neuropathy are causally or etiologically related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for repetitive motion syndrome of the bilateral upper extremities with bilateral elbow and wrist strains and left ulnar neuropathy is warranted. Chronic fatigue syndrome In April 2008, the RO denied service connection for chronic fatigue syndrome, also claimed as difficulty sleeping, chills, night sweats, apathy, dizzy, headaches, lack of sexual desire, mood swings, and bloating. The Veteran disagreed with the decision and subsequently perfected this appeal. As noted above, the RO combined multiple complaints and symptoms into one issue. The Board observes that the Veteran is already service-connected for migraine headaches, and his complaints of difficulty sleeping, chills, night sweats, apathy, and problems with mood have been associated with service-connected obstructive sleep apnea and/or PTSD. Regarding the claimed dizziness, at the March 2012 examination, the Veteran related the dizziness to being emotionally drained from PTSD as well as the sleep disorder with poor sleep quality due to PTSD. The March 2012 examiner noted the complaints of dizziness, but indicated that there was no evidence for a chronic disability pattern. Complaints of intermittent bloating are also associated with his service-connected irritable bowel syndrome. The Veteran associated his decreased libido to anthrax shots and sleep disorder from service-connected PTSD. The examiner noted that this was a diagnosable condition less likely related to any specific exposure event in Southwest Asia. Considering the foregoing, the Board finds that the claimed issue is best characterized as service connection for chronic fatigue. In a January 2008 statement, the Veteran reported his belief that he has chronic fatigue syndrome and indicated that he started feeling these symptoms during and after his seven month tour in support of Desert Shield and Desert Storm. At the February 2013 hearing, the Veteran testified that he was physically well prior to Desert Shield/Desert Storm, and he blamed the fatigue on a lot of the environmental issues. He has not been diagnosed with chronic fatigue syndrome. The Board has reviewed the claims folder and is unable to find a confirmed diagnosis of chronic fatigue syndrome. However, the March 2012 VA examiner indicated that the Veteran has chronic fatigue and that this was an undiagnosed condition. In order to establish service connection under 38 C.F.R. § 3.317, the disability must have become manifest either during active military service in Southwest Asia, or to a compensable degree not later than December 31, 2016. Pursuant to the rating schedule, a 10 percent evaluation is warranted for chronic fatigue syndrome when there is debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms, which 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, Diagnostic Code 6354. Note to this provision indicates that for the purpose of evaluating this disability, the condition will be considered incapacitating only while it required bed rest and treatment by a physician. Id. The Board acknowledges that periods of incapacitation are not shown, and while the Veteran takes multiple medications, there is no indication of continuous medication specifically for the treatment of fatigue. Notwithstanding, there is evidence of debilitating fatigue that is nearly constant and significant enough to impair daily activity and result in time lost from work. Thus, resolving reasonable doubt in his favor, the current disability picture more nearly approximates a compensable evaluation. See 38 C.F.R. §§ 4.3, 4.7, 4.88b, Diagnostic Code 6354. Based on the foregoing, the Veteran has been shown to have an undiagnosed illness manifested by fatigue that has existed for more than 6 months and has become manifest to a compensable degree. Thus, the criteria for service connection for disability manifested by fatigue due to undiagnosed illness are met. 38 C.F.R. §§ 3.102, 3.317. ORDER Service connection for repetitive motion syndrome of the bilateral upper extremities with bilateral elbow and wrist strains and left ulnar neuropathy, claimed as tendonitis and an undiagnosed neurological syndrome, is granted. Service connection for a disability manifested by fatigue due to an undiagnosed illness, claimed as chronic fatigue syndrome, is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs