Citation Nr: 1323899 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 05-10 486A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a chronic disability manifested by fatigue, to include as secondary to polychlorinated biphenyl (PCB) exposure. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from October 1981 to September 1997. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. In September 2005, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2007 and June 2009, the Board remanded the Veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. In a January 2010 decision, the Board denied the Veteran's claim for service connection for a chronic disability manifested by fatigue, including chronic fatigue syndrome (CFS). The Veteran appealed the Board's January 2010 decision to the United States Court of Appeals for Veterans Claims (court). During the pendency of that litigation, VA's General Counsel and the appellant's attorney filed a Joint Motion for Remand. In an August 2010 Order, the court granted the parties' joint motion, vacated the Board's January 2010 decision, and remanded the matter to the Board for adjudication. A copy of the court's August 2010 Order is in the claims file. In March 2011, the Board remanded the Veteran's case to the RO via the AMC for further development. Thereafter, in April 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for a chronic disability manifested by fatigue, to include as secondary to PCB exposure. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in May 2013. FINDING OF FACT Resolving all doubt in the Veteran's favor, a chronic disability manifested by chronic fatigue had its onset during his active military service. CONCLUSION OF LAW The criteria to establish service connection for a chronic disability manifested by chronic fatigue have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for a chronic disability manifested by chronic fatigue herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran asserts that he has a chronic disability manifested by fatigue, including as secondary to PCB exposure. In an August 2001 letter, he indicated that his military duties included shredding carbonless copy paper. The Veteran contended that, as a result of exposure to the chemicals in the paper, he developed various symtoms and disabilities, including chronic fatigue. During his September 2005 Board hearing, the Veteran testified that he suffered from fatigue and hypersomnolence, and was sleepy all the time. See Board hearing transcript at page 2. He also testified that it was his belief that his symtoms were due to his exposure to PCBs in carbonless copy paper during service. Id. Thus, he contends that service connection is warranted for a chronic disability manifested by fatigue. Upon review of the record, the Board finds that the evidence is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for a chronic disability manifested by chronic fatigue. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Case law has established that lay 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This is also a direct service connection theory of entitlement. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). With regard to the matter of establishing service connection for a disability on a secondary basis, the court has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, he is not competent to provide evidence as to more complex medical questions, such as the etiology of occupational or environmental pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Service treatment records show that, in December 1989, the Veteran was involved in a motor vehicle accident and seen for a concussion and fractured fingers. Clinical records further show that he received regular psychiatric treatment, including for major depression and a personality disorder, not otherwise specified. His complaints included depression, as well as loss of energy and motivation, with a gradual onset in 1992 (according to an April 1997 record, discussed below). During a psychiatry outpatient visit in July 1996, the appellant complained of fatigue. It was noted that he was prescribed Zoloft for treatment of depression. During another psychiatry outpatient visit in December 1996, the appellant complained of difficulty sleeping with frequent awakenings. During a visit to the psychiatry clinic in February 1997, his complaints included loss of energy and motivation, as well as drowsiness with frequent awakening at night. In an April 1997 psychiatry narrative summary, completed in connection with a Medical Evaluation Board, it was noted that the appellant reported depressive symptoms in 1992. His complaints included intermittent insomnia. The appellant was tried on several medications. He was initially prescribed Zoloft, that improved his depressive symptoms and insomnia, but he discontinued the medication due to other side effects. He was thereafter prescribed Effexor but reported significant daytime sedation and other significant side effects and was switched to another medication. The narrative summary indicates that the appellant's diagnoses included major depressive disorder, manifested by depressive episodes, diminished interest in activities, disrupting sleep, fatigue, and irritability. In light of his depression, as well as a personality disorder, separation from active service was recommended. In June 1997, the appellant underwent a sleep study in connection with his complaints of excessive daytime somnolence. The examiner indicated that the study was normal with mild hypersomnolence but no evidence of pathologic process. The examiner noted that the appellant's history was suggestive of psychophysiologic insomnia with resultant insufficient sleep. Post service, July 1998 VA medical and psychiatric examinations do not discuss a disability manifested by chronic fatigue, including CFS. In a September 1998 rating decision, the RO granted service connection for several disabilities, including a major depressive disorder. As noted, in his August 2001 written statement, the appellant indicated that his military duties included shredding carbonless copy paper. He claimed that, as a result of exposure to the chemicals in the paper, he developed various symptoms and disabilities, including chronic fatigue. In connection with his various claims, the appellant underwent VA psychiatric examination in November 2001. He reported that he was under treatment for depression since 1992. His complaints included mild depression, fatigue, and feeling tired all the time. The diagnoses included major depression and a personality disorder. A series of VA medical examinations conducted in November 2001 was negative for complaints or findings of a disability manifested by chronic fatigue. In the December 2001 rating decision on appeal, the RO increased the rating for the appellant's service-connected depressive disorder to 10 percent. The RO also denied service connection for a disability manifested by chronic fatigue, noting that the appellant's symptoms of fatigue were considered in evaluating his service-connected depression, but there was no evidence of a separate physical disability manifested by fatigue. The appellant appealed the RO's determination, arguing that his depression and fatigue could have been caused by his exposure to chemicals in carbonless copy paper. See December 2002 notice of disagreement. He indicated that he planned to sue the manufacturer of the paper in civil court. In support of his appeal, the appellant submitted an April 2003 letter from Raymond Singer, Ph.D., who indicated that the appellant had consulted him regarding multiple health problems which he believed were associated with his exposure to carbonless copy paper. Dr. Singer noted that the appellant claimed extensive exposure to carbonless copy paper over a multi-year period. His complaints included chronic fatigue and sleeplessness. Dr. Singer commented that chronic fatigue and sleeplessness could be caused by neurotoxicity, secondary to exposure to carbonless copy paper or some other exposure. He noted, however, that the Veteran's symptoms could also be related to another medical condition. The appellant also submitted numerous medical treatises and Internet printouts regarding multiple chemical sensitivity, carbonless copy paper, CFS, and PCB. During his September 2005 Board hearing, the appellant submitted a December 2004 consultation report from Andrew Campbell, M.D., whose letterhead indicates that he specializes in "immune and toxic disorders." Dr. Campbell noted that the appellant reported that, for a number of years, he was exposed to chemical dust and powder from shredding and grinding carbonless copy paper. Dr. Campbell indicated that the appellant's symptoms included constant fatigue and sleep disturbances. Dr. Campbell observed that carbonless paper was known to contain PCB that, when concentrated in indoor air, was associated with neurotoxicity. He noted that neurotoxicity in the appellant should be ruled out. Dr. Singer recommended further testing that the appellant declined. The appellant underwent VA medical examination in August 2007, and reported that he was tired since 1990. He denied problems sleeping, stating that he did not have insomnia and slept quite well. The appellant indicated that his private physician recommended a work up for chemical exposure, but this was not done. The appellant denied any knowledge of specific chemical exposure. After examining the appellant and reviewing his claims folder, the examiner concluded that the appellant did not have CFS. The examiner delineated the criteria for establishing a diagnosis of CFS and explained why the appellant's complaints and symptoms did not meet the necessary criteria. In a March 2009 addendum, the physician who had conducted the August 2007 VA medical examination noted that the appellant reported that his symptoms of fatigue began in 1990, during his period of service. The examiner observed, however, that there was no documentation in the claims file to establish that the appellant was exposed to chemicals during active duty. The appellant again underwent VA medical examination in August 2009. He reported symptoms such as falling asleep while driving and excessive sleeping, greater than 12 hours daily. The appellant reported that he was exposed to PCB in the 1980s, a chemical that he noted was known to cause long term problems with fatigue. The examiner indicated that the use of PCB in paper products in the United States was banned in 1977. After examining the appellant and reviewing his claims folder, the examiner concluded that, while the appellant could have been exposed to PCB while shredding paper produced prior to 1977, his symptoms did not fulfill the criteria for a diagnosis of CFS. The examiner delineated the criteria for establishing a diagnosis of CFS and explained why the appellant's complaints and symptoms did not meet the necessary criteria. In February 2012, the Veteran underwent another VA examination. The Veteran reported that he started feeling tired in the early 1990s when he was on active duty. He worked at a computer center his entire 16 years in service. The Veteran saw a physician in approximately 1991 and was diagnosed as having depression that was treated with prescribed medications without any relief. A sleep study was performed in 1996 without any diagnosis. A personality disorder was diagnosed, and he was kicked out of the Air Force in 1997. Since then, blood tests and x-rays revealed nothing. The Veteran believed he "got it" from exposure to carbonless copy when it was shredded in service. Upon clinical evaluation, the VA examiner concluded that the Veteran did not have CFS. In the VA examiner's opinion, exposure to carbonless paper shredding could have exposed the patient to PCB; however, the Veteran's symptoms did not fulfill the criteria for a CFS as his main manifestation was daytime sleepiness. A March 2012 private medical bill from Dr. Karl Hempel shows a diagnosis of chronic fatigue disability. In July 2012, a VA physician-examiner considered if the Veteran had multi-chemical sensitivity (MCS) and toxicant-induced loss of tolerance (TILT) that were related to military service, including exposure to carbonless copy paper. The Veteran reported that he had allergy skin testing that was negative, "in spite of a history of sneezing and itchy eyes walking down the stress as well...getting raised areas of the skin if and where his skin scratches him, and these are associated with the 'fatigue and flu like symptoms.'" The VA examiner commented that the discussion of MCS was "wrought with many difficulties", one of the greatest ones being that there was no specific test available at this time to reliably demonstrate the presence or absence of a chemical sensitivity. The VA examiner also noted the ambiguity in "determining which chemical or chemicals may be the offending agent and then confirming the alleged offending exposure occurred." The VA examiner stated that there were "several facts that seem to mitigate against the claimant having developed a hypersensitivity to one or several of the chemical compounds found in carbonless carbon paper." The examiner noted that the claim of getting shredded paper particles in the nose seemed difficult unless one was standing with their nose up against the exhaust component of the shredder unit. Also, and as per the Veteran's own verbal history on current examination, he had similar symtoms triggered by being around cats. It was very unlikely that a cat possessed the same chemicals on its skin as what was contained in the carbonless copy paper. The VA examiner concluded that the Veteran "clearly had what seems like a generalized hypersensitivity, as noted by the multitude of described reactions to cats and even food items such as beer or wine." In summary, the VA examiner found that [in light of] the lack of a clearly documented skin reaction (in the face of what would be clear skin exposure based on the claimant's description of his exposures) to show objective proof of a chemical hypersensitivity to the carbonless carbon paper, as well as the claimant's history of similar symtoms in unrelated circumstances (such as the cat), as well as no meaningful method to assess what chemical or chemicals, if any, give rise to a chemical specific hypersensitivity reaction, the claimant's claim of multiple chemical sensitivities related to in-service exposures, and specifically to carbonless carbon paper, as well as the numerous chemicals one can be exposed to in "normal" daily life, the claim of MCS or TILT...is LESS LIKELY THAN NOT due to service illness, injury, treatment or event. In April 2013, the Board requested a VHA opinion from a medical specialist regarding whether it was as likely as not that the Veteran currently manifests any chronic disability manifested by fatigue, to include CFS, MCS, or TILT. If so, the examiner was requested to provide an opinion as to whether it was at least as likely as not that any such disability was causally related to the appellant's active service or any incident therein, including his reported exposure to carbonless paper. In a May 2013 report, a VA physician, who is an environmental medicine specialist, indicated that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The VHA medical expert noted the February 2012 VA examiner's determination that the Veteran's main manifestation of chronic fatigue was daytime sleepiness. According to the VHA specialist, the Veteran's "condition remains mild hypersomnolence, as it was [in June 1997] at the time of his sleep evaluation, when he was given the diagnosis of Psychophysiologic insomnia . . . . There is no evidence . . . that the appellant has in-service chemically induced [CFS, MCS, or TILT]." In reaching his findings, the VHA examiner reviewed the Veteran's medical records and relevant medical literature regarding CFS. The examiner explained that, because of the lack of consensus among clinicians and epidemiologists as to the criteria that define CFS, MCS, and TILT, "it is necessary to consider objective evidence of the functional and occupational impact of these conditions on affected patients." The VA medical specialist stated that "[i]n the case of the appellant, such evidence is almost totally lacking. There are no copies of medical records from the appellant's primary care providers as to ongoing complaints, laboratory or other tests, or hospitalizations, if any, other than very limited reports from his primary care provider in the years immediately after his discharge from the Air Force." The VA physician noted that, other than the Veteran's statements, there was no "actual evidence regarding the claimed exposure in 1982 or 1983 to unsafe working conditions in shredding carbonless copy paper [in service]." The VA examiner observed that, in December 1989, the Veteran had a motor vehicle accident with head trauma without loss of consciousness. According to the examiner, there was no record to indicate that the Veteran received a magnetic resonance image for cerebral changes associated with traumatic head injury such as concussion in 1989. Additionally, the VA examiner noted the Veteran's June 1997 service treatment records indicating complaints of excessive daytime somnolence and sleeping through alarms, and the results of the sleep study when he showed mild hyper-somnolence. According to the VA medical specialist, the Veteran's service record "clearly documents that he did complain of and seek treatment for fatigue during active duty." The VA physician commented that it was "not clear from review of the available records that the fatigue of this appellant with a history of in-service head trauma and concussion was and is entirely due to depression." Service connection may be granted for a disability that is proximately due to, or the result of, active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The record shows that the Veteran has chronic fatigue manifested by daytime sleepiness that was noted in his service treatment records in June 1997, and that continued after he was discharged from service. Here the evidence is in equipoise. The VHA examiner opined that the Veteran's chronic disability manifested by chronic fatigue was at least as likely as not related to his active military service, although other VA clinicians associated the complaints of fatigue with service-connected depression. But, the VHA physician commented that it was "not clear from review of the available records that the fatigue of this appellant with a history of in-service head trauma and concussion was and is entirely due to depression." The VHA examiner found no evidence that the Veteran had CFS, MCS, or TILT related to military service, that is consistent with the opinions rendered by the August 2007, August 2009, and February and July 2012 VA examiners. Given the medical expertise of the VHA examiner, the Board is persuaded that the evidence supports the Veteran's claim and service connection may be granted. As such, affording the Veteran all benefit of the doubt, service connection for a chronic disability manifested by chronic fatigue is warranted and the Veteran's claim will be granted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. ORDER Service connection for a chronic disability manifested by chronic fatigue is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs