Citation Nr: 1320950 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-28 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a disability manifested by chronic fatigue syndrome/chronic fatigue syndrome (CFS). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1989 to August 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Board remanded this matter for proper Veterans Claims Assistance Act (VCAA) notice. An unappealed September 2002 rating decision denied the Veteran's claim of service connection for fatigue claimed as due to an undiagnosed illness, including CFS, based on findings that the Veteran's chronic fatigue was not an undiagnosed illness, as it was due to a diagnosis of CFS which was not noted in service or shown to be related to service. The notice letter to the Veteran only advised her of the denial of service connection for chronic fatigue as an undiagnosed illness, and did not mention CFS. As the Veteran was not properly notified of the denial of service connection for CFS, the decision is not final as to such entity. In the June 2011 remand the Board, recognizing that the RO had previously addressed service connection for CFS, remanded the case for Kent compliant notice. In retrospect the Board finds that the RO's de novo consideration of this matter was not in fact incorrect (given the inadequate notice), and that de novo review is now warranted. The Board finds the Veteran is not prejudiced by the Board affording her de novo review, as the RO has already done so. FINDING OF FACT The Veteran's chronic fatigue has been attributed to, and is considered in the ratings for, her service-connected posttraumatic stress disorder (PTSD) and fibromyalgia; she does not have CFS, as defined by regulation. CONCLUSION OF LAW Service connection for a disability manifested by chronic fatigue, to include CFS, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 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). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of her claim prior to its initial adjudication. While she did not receive complete notice prior to the initial rating decision, an August 2008 letter provided certain essential notice prior to the readjudication of her claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). She has specifically been notified that to establish service connection for CFS she must show a diagnosis of such disability. See December 2011 letter. An April 2012 supplemental statement of the case (SSOC) readjudicated the matter after the Veteran and her representative had opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)(a VCAA timing defect may be cured by issuance of fully compliant notification followed by readjudication of the claim). She has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) have been associated with her claims file, and pertinent postservice treatment records have been secured. The Board has reviewed her Virtual VA (electronic) file and found no pertinent evidence beyond what is discussed in this decision. She was afforded VA examinations in June 2001 and May 2009. These examinations are adequate for rating purposes. The examiners conducted thorough examinations, reviewed the record and, expressing familiarity with the record, provided opinions accompanied by adequate explanation of rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. In June 2011 she indicated that she had no other information or evidence to give VA to support her claim. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish service connection for a claimed disability, there must be evidence of the claimed disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disorder may also be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Service connection also may be granted for any disease initially 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 determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). As the Veteran served in Southwest Asia during the Persian Gulf Era, she is entitled to consideration of her claim under the presumptive provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, which include that a Persian Gulf Veteran with a qualifying disability (including the multi-system illness of CFS and an undiagnosed illness due to fatigue) may be awarded compensation for such disability. For VA purposes, the diagnosis of CFS requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headache (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, (x) sleep disturbance. 38 C.F.R. § 4.88a. An undiagnosed illness is one that cannot be attributed to any know clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that all of the evidence in the Veteran's claims file and in Virtual VA with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs are silent for any complaints, findings, treatment or diagnosis of chronic fatigue or CFS. On June 2001 VA CFS examination, the examiner noted that CFS as an illness is characterized by debilitating fatigue and several flu-like symptoms. It may have both physical and psychiatric manifestations and closely resembles neurasthenia, neurocirculatory asthenia, fibrositis, or fibromyalgia. The Veteran denied an acute onset of CFS. The examiner noted that the Veteran did not meet the requirements for CFS, and rendered a diagnosis of unmet criteria for CFS. On June 2001 VA examination for fibromyalgia, the Veteran reported a history of unexplained fatigue, and sleep disturbances. It was noted that the Veteran's depression appeared to be accompanied by symptoms of fatigue. Her fatigue improved when she refrains from working. It was further noted that there was no date of diagnosis for CFS and she did not meet the requirements for CFS. On June 2001 VA Gulf War guidelines examination, it was noted that the Veteran met five of the requirements for diagnosis of CFS symptoms (and that a diagnosis of CFS required that 6 of 10 be met). VA treatment records from 2000 to 2009 do not show a diagnosis of CFS. A September 2006 VA pulmonary outpatient report notes that the Veteran's inadequate sleep accounts for her symptoms of fatigue, tiredness, and increase in anxiety in her daily activities, which may be secondary to her history of PTSD, fibromyalgia and sexual trauma. A December 2008 VA general primary care note, notes that the Veteran was not getting enough sleep and was tired all the time. She stated that she was having ongoing problems with insomnia. A January 2009 VA mental health report, notes that the Veteran reported that she was tired all the time, and that she felt exhausted by anything she does. On May 2009 VA Gulf War guidelines examination, she reported that she had a lot of difficulty sleeping, had constant daily headaches, and was chronically fatigued. The examiner noted that findings on clinical examination did not meet criteria for CFS. He opined that the causes of the Veteran's chronic fatigue may be insomnia, depression and PTSD. Because the 2001 and 2009 VA examinations and opinions are by medical professionals (who have medical expertise and are competent to offer them) and the opinions are accompanied by adequate explanation of rationale (with citation to supporting factual data) they are probative evidence in this matter; and because there is no competent evidence to the contrary, they are persuasive. The Board acknowledges that the Veteran has documented reports of fatigue as a likely symptom of her service-connected PTSD and fibromyalgia. Significantly, both PTSD and fibromyalgia are service connected, and fatigue related to such diagnoses is, in turn, also service-connected (and considered in the rating for such disabilities). The Veteran's reports of fatigue (which has been attributed to PTSD) and fibromyalgia) cannot be found to be compensable as due to an undiagnosed because PTSD and fibromyalgia are both known clinical diagnoses. See 38 C.F.R. § 3.317(a). And as the Veteran has never (during the pendency of this claim/appeal) been shown to meet the criteria for a diagnosis of CFS, service connection for her fatigue as a separate multi-system entity of CFS likewise is not warranted. In summary, the record simply does not show that in addition to the fatigue associated with her service connected fibromyalgia and PTSD the Veteran has a separate entity of CFS or undiagnosed illness due to chronic fatigue. Accordingly, a threshold legal requirement for establishing service connection, evidence of the disability for which service connection is sought, is not satisfied. In the absence of proof that the Veteran has CFS, or an undiagnosed illness manifested by chronic fatigue, there is no valid claim of service connection for fatigue as a separate entity from the already service-connected symptoms of fatigue attributed to PTSD and fibromyalgia. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the appeal in this matter must be denied. ORDER Service connection for disability manifested by fatigue, to include CFS (separate and distinct from then fatigue due to fibromyalgia and PTSD) is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs