Citation Nr: 1322378 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-34 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hypertension, including as secondary to a service-connected disability. 2. Entitlement to service connection for a disability manifested by sleep disturbance and fatigue, including chronic fatigue syndrome (CFS) and to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Pursuant to activation of his Oregon Army National Guard unit, the Veteran served on active duty in Southwest Asia from June 2004 to November 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which-in pertinent part, denied chronic fatigue syndrome and high blood pressure. The issue of entitlement to service connection for irritable bowel syndrome (IBS) was also on appeal, but it was granted in an August 2012 rating decision. Hence, that issue is not before the Board and will not, except by reference, be addressed in the decision below. The Veteran also appealed the initial rating for posttraumatic stress disorder (PTSD) as well as the denial of entitlement to service connection for bilateral knee pain, bilateral elbow pain, right shoulder disability, bilateral foot disability and contact dermatitis. All of these issues were noted in the statement of the case (SOC). The Veteran indicated on his substantive appeal (VA Form 9), however, that he perfected his appeal solely as to hypertension, CFS, and IBS, and no additional issues were certified to the Board. Hence, the Board and will not address other issues. See 38 C.F.R. §§ 20.200, 20.202 (2012). The Veteran indicated on his Form 9 that he desired a Board hearing at the local RO, which was scheduled in September 2012. He failed to appear for the hearing as scheduled, and he has not filed a Motion to request the hearing be rescheduled. Thus, his request for a Board hearing is deemed to have been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board remanded the case in May 2012. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has reviewed the contents of the Virtual file, and the documents included therein are duplicative of those in the paper claims file. Hence, there is no need to seek a waiver from the Veteran or to remand for initial RO review and consideration. See 38 C.F.R. § 20.1304 (2012). The issue of entitlement to service connection for hypertension, including as secondary to a service-connected disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, and is addressed in the REMAND portion of the decision. FINDINGS OF FACT 1. The Veteran does not meet the criteria for a diagnosis of chronic fatigue syndrome. 3. The Veteran has chronic fatigue and sleep impairment as a result of his service-connected PTSD. CONCLUSION OF LAW 1. CFS was not incurred in active service, nor may its incurrence during such service be presumed. 38 U.S.C.A. §§ 1110, 1117 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012). 2. Chronic fatigue and sleep impairment are proximately due to a service connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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); See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, prior to issuance of the rating decision on appeal, the Veteran was sent a notice letter in September 2007. This communication explained the division of responsibilities between VA and a claimant in developing an appeal. The letter also expressly informed the Veteran how to substantiate a service connection claim and what type of information and evidence was needed to establish a disability rating and effective date in the event service connection is granted. The Board finds the September 2007 letter was fully time- and content-compliant. 38 C.F.R. § 3.159(b); see also Dingess/Hartman, both supra. Thus, the Board finds VA fully complied with the VCAA notice requirements. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c). Upon receipt of the Veteran's claim, the RO obtained the service treatment records, identified private treatment records, VA outpatient records, and arranged an examination of the Veteran. The Board remanded the case to afford him another examination. He was afforded that examination, and the examiner provided answers to the questions posed in the remand. Hence there was substantial compliance with the remand instructions. In light of the above, the Board finds VA has fully assisted the Veteran with his claim, and that the record is sufficiently developed for a decision on the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Applicable Law and Regulation Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently clarified that this basis for showing entitlement to service connection is limited solely to a chronic disease, as defined by Congress. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see, i.e., 38 C.F.R. §§ 3.309(a), 3.317. Chronic fatigue syndrome is not listed as a chronic disease. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is authorized to pay compensation to any Persian Gulf veteran suffering from a "qualifying chronic disability." A "qualifying chronic disability," includes (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as CFS, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B). To obtain service connection for an undiagnosed illness or combination of undiagnosed illnesses, a veteran needs to show (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability 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) that have become 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, 2016, 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; 38 C.F.R. § 3.317(a). Manifestations of an undiagnosed illness or multisymptom illness include, but are not limited to, fatigue, headache, muscle pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, or abnormal weight loss. 38 C.F.R. § 3.317(b) Service connection is also provided for disability that is proximately due to, or the result of, a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Service personnel records reflect the Veteran was a member of the Oregon Army National Guard (ORARNG). Pursuant to Special Order 178-215, Headquarters ORARNG, dated in November 2005, the Veteran's unit was activated for service in the Federal NG. The Veteran served the entire tour in Southwest Asia. Thus, he has the requisite qualifying service for consideration for service connection under the presumptive provisions of 38 C.F.R. § 3.317, as well as the general provisions under 38 C.F.R. § 3.303. The provisions of 38 C.F.R. § 3.317 provide for service connection for an undiagnosed illness manifested by unexplained chronic joint pain. Nonetheless, as noted in the Introduction, the Veteran specifically elected not to pursue his claim on the basis of chronic joint pain. In a June 2009 statement, the Veteran's girlfriend attested that the Veteran complained of being fatigued on a daily basis, no matter how many hours of sleep he got. She related further that the Veteran always wanted to take naps, and he would miss work if she was not present to wake him up. On his September 2006 Report of Medical History, the Veteran denied a prior history of difficulty sleeping. The September 2006 Report of Medical Examination reflects the Veteran was assessed as normal in all areas except identifying marks. The January 2013 VA examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted that there was no current diagnosis of CFS on record. The Veteran reported that he felt tired on rising in the morning, and he did not feel as if he had gotten a good night's sleep. He reported further that he did not have trouble falling asleep, but he awoke every hour of the night, or at least three to four times a night. The Veteran reported he felt tired all the time during the day, and that his symptoms started in the Army around 2006. He denied apnea or snoring, but he also reported that his dreams or thoughts could keep him awake. The Veteran denied any other specific related symptoms. He reported he played dodge ball a couple of times a week and he worked full time. The Veteran denied his fatigue was debilitating or that it restricted his activities of daily living or work. Physical examination revealed the Veteran to be overweight, but in no acute distress. The examiner noted the examination was unremarkable. Laboratory tests were interpreted as normal. The examiner noted that no diagnosis of CFS was made on the basis of the examination, as there were no findings compatible with the criteria for the disorder. The examiner opined that fatigue was not a disorder in and of itself but a symptom. The examiner further opined that there was at least 50-percent probability that the Veteran's fatigue was due to sleep disturbance that was a manifestation of his PTSD symptomatology. As a result of that finding, the examiner opined further that the Veteran's symptoms did not meet the criteria for an undiagnosed illness, as they were related to a specific diagnosed disorder, PTSD. The Veteran was also examined by a psychiatrist as part of his examination. The January 2013 psychiatric report reflects the examiner interviewed the Veteran. The examiner noted the Veteran's symptoms included chronic fatigue, which the examiner opined was more likely than not related to the Veteran's fragmented sleep pattern. The examiner noted the fragmented sleep pattern was related to recurrent nightmares and associated anxiety, both of which are symptomatic of the Veteran's PTSD. The examiner noted the Veteran reported his prescribed Citalopram 40 mg has provided positive relief for his anxiety. The Board finds both examinations adequate for appellate review purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As noted, the examiners did not find that the Veteran met the criteria for a diagnosis of CFS. There is no other evidence that the Veteran meets the criteria fort that diagnosis and there is no evidence of another a medically unexplained chronic multi-symptom illness. Further, an examining psychiatrist opined the Veteran's reported fatigue and sleep disturbance were associated with his service-connected PTSD, for which he is separately compensated. Therefore, there also is no basis for entitlement to service connection for an undiagnosed illness. 38 C.F.R. §§ 3.303, 3.317. The Veteran essentially contends that he does meet the criteria for a diagnosis of CFS, but it would require medical expertise to say that the Veteran met the specific critieria for that diagnosis. While the Veteran is competent to report his symptoms, he lacks the medical expertise needed to say that the symptoms satisfy the requirements for a diagnosis of CFS. Hence, his opinion as to the specific diagnosis is not competent. Service connection is; however available for disability that is proximately due to a service connected disease or disability. 38 C.F.R. § 3.310(a). The examiner's opinion supports the conclusion that the Veteran has additional disability-sleep disturbance and fatigue-that is additional disability resulting from service connected PTSD. Although the examiner noted that fatigue was a symptom of the sleep disturbance, the fact remains that the Veteran has additional disability due to a service connected disease or injury, and the criteria for service connection under 38 C.F.R. § 3.310(a) are met. In reaching this decision the Board considered the doctrine of reasonable doubt. The preponderance of the evidence is against service connection for CFS; but is in at least equipoise as to the question of whether service connection is warranted for sleep disturbance and fatigue. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a disability manifested by sleep disturbance and fatigue is granted. REMAND The January 2013 VA examinations addressed whether the Veteran's diagnosed hypertension was caused or aggravated by PTSD. The examiner provided a negative opinion. The Veteran's representative, however, in the June 2013 Informal Hearing Presentation, cited evidence that could be construed as relating hypertension to PTSD and irritable bowel syndrome (IBS). The mental health examiner did not consider this evidence or provide an explanation for the conclusion that PTSD was not a risk factor for hypertension. Clarification is required. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA evaluation or examination to determine whether the claimed hypertension is caused or aggravated by the service connected PTSD or IBS. The examiner should review the claims file; including the evidence referred to in the representative's June 11, 2013 presentation to the Board. The examiner should opine whether it is at least as likely as not that the service connected PTSD or IBS was a proximate cause of current hypertension; or whether PTSD or IBS aggravated (permanently worsened) the current hypertension. If PTSD aggravated hypertension, the examiner should opine as to whether there is medical evidence created prior to the aggravation, or at any time between the onset of aggravation and the current level of disability, that shows a baseline of the hypertension. The examiner should provide reasons for the opinions that take into account the in-service documentation of elevated blood pressure and the elevated reading on the examination in September 2006. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide reasons why this is so, and whether there is additional evidence that would permit the necessary opinion to be provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide the reasons for doing so. 2. The AMC/RO should review the examination reports to ensure that all questions posed in this remand have been answered. 3. If the decision remains in any way adverse to the Veteran, a supplemental SOC should be issued. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs