Citation Nr: 1327345 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-29 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for chronic fatigue, to include as due to undiagnosed illness. 2. Entitlement to service connection for sleeplessness, to include as due to undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to November 1979, November 1990 to May 1991 and March 2003 to August 2003, with service in Southwest Asia during his latter two periods of active duty. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied service connection for an undiagnosed illness claimed as headaches, chronic fatigue, and sleeplessness. His case is currently under the jurisdiction of the VA RO in New Orleans, Louisiana In April 2011 and November 2012, the Board remanded the Veteran's claims for service connection for headaches, chronic fatigue, and sleeplessness to the Appeals Management Center (AMC) for further evidentiary development. In a May 2013 rating decision, the AMC granted service connection for headaches. This grant of service connection is considered to be a full grant of the benefits on appeal for the Veteran's headaches claim. As such, the claim of entitlement to service connection for headaches, to include as due to undiagnosed illness, is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In October 2010, the Veteran presented sworn testimony during a video conference hearing, which was chaired by a Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Veterans Law Judge who held the October 2010 video conference hearing is no longer employed at the Board. In February 2012, the Board sent the Veteran a letter asking whether he wished to attend another hearing before the Board. See 38 C.F.R. § 20.707 (2012). The Veteran responded that he did not wish to attend another hearing before a different Veterans Law Judge. At his October 2010 Board hearing, the Veteran claimed that he experienced skin rashes, chronic pain, and bowel problems that he believed were due to an undiagnosed illness. The Board referred these issues to the Agency of Original Jurisdiction (AOJ) for adjudication in its April 2011. However, the AOJ has not developed or adjudicated these claims. The Board does not have jurisdiction over them, and they are once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's complaints of chronic fatigue have been attributed as being a symptoms of his service-connected PTSD rather than a separate and distinct disability such as chronic fatigue syndrome. 2. The Veteran's complaints of sleeplessness have been attributed as being a symptom of his service-connected PTSD rather than a separate and distinct disability. CONCLUSIONS OF LAW 1. A chronic fatigue disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). 2. A sleep disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. A September 2004 letter provided all required notice elements except information regarding disability ratings and effective dates. Although the September 2004 letter did not inform the Veteran of how VA determines the appropriate disability rating and effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Board has concluded that the preponderance of the evidence is against the claim for service connection. As such, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. VA's duty to assist has also been satisfied. Portions of the Veteran's service treatment records have been obtained along with his service personnel records and identified VA treatment records. The Veteran has not identified any additional private or other records that he felt were relevant to his claims or that he wished for VA to obtain. The Board notes that VA was not able to obtain a complete copy of the Veteran's service treatment records. See Formal Finding, May 2005. However, the Veteran does not claim that he was treated for fatigue or sleeplessness in service. It is also crucial to note that his claims are being denied on the lack of evidence of a separate and distinct disability manifested by chronic fatigue and/or sleeplessness and not for lack of in-service event or injury. Put another way, the Veteran is not prejudiced by the lack of his complete service treatment records. The record indicates that the Veteran underwent VA examinations to address his reported fatigue and sleeplessness in December 2012 and April 2013 with a May 2013 addendum opinion. The reports from those examinations and opinion have been included in the claims file for review. The examinations/opinion each involved a review of the claims file, a thorough examination of the Veteran (examinations only), the Veteran's lay history, and a conclusion that was supported by sufficient rationale. Therefore, the Board finds that the examinations/opinion of record, taken together, are adequate to decide the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal was identified. Information was also elicited from the Veteran concerning his symptoms and contentions regarding their etiology. Notably, the hearing testimony elicited led to the grant of service connection for PTSD and remands for VA examinations for the remaining claims. Finally, as noted above, this case was remanded for additional evidentiary development including obtaining updated VA treatment records and providing the Veteran VA examinations and opinions for his claimed disabilities. In November 2012, the Board again remanded these claims for the same evidentiary development. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records from the Alexandria VAMC. The Veteran was afforded VA examinations to address his claimed disabilities in December 2012 and April 2013 with a May 2013 addendum opinion. Accordingly, all remand instructions issued by the Board have been complied with and these matters are once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims The Veteran claims that he currently suffers from chronic fatigue and sleeplessness due to his military service. He contends that he first experienced chronic fatigue and sleeplessness upon his 2003 return from Iraq. He believes that compensation is warranted under 38 C.F.R. § 3.317 for certain disabilities due to undiagnosed illnesses. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for 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, 2011, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317(a)(1) (2012). A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317(a)(2)(i) (2012). 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 will not be considered medically unexplained. 38 C.F.R. § 3.317(2)(ii) (2012). "Objective indications of a 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) (2012). 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) (2012). A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(1)(5) (2012). A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(6) (2012). Signs or symptoms which may be manifestations of an 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, neurologic signs and 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, or menstrual disorders. C.F.R. § 3.317(b) (2012). Compensation will not be paid if (1) there is affirmative evidence that an undiagnosed illness was not incurred in active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) 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 (3) 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(c) (2012). A review of the medical evidence of record does not reflect that the Veteran has been diagnosed as having a disability manifested by chronic fatigue or sleeplessness. Recognition is given to the fact that VA psychiatric treatment records reflect complaints of drowsiness, insomnia, nightmares, and night sweats. However, none of those records clearly diagnosis a disability manifested by chronic fatigue or sleep disorders, such as chronic fatigue syndrome. Moreover, and of significant import, the Veteran underwent examinations in August 2005, December 2012, and April 2013, wherein he endorsed symptoms of fatigue, sleeplessness, nightmares, and sleep impairment (restlessness), but none of these examiners diagnosed him with chronic fatigue syndrome or any other chronic fatigue or sleep disorder. The April 2013 and May 2013 examiner opined instead that the Veteran's problem with sleep was due to stress/PTSD. Indeed, unlike his now service connected headaches, which was described a clinical diagnosis that was caused by the Veteran's PTSD, the May 2013 examiner explained that the Veteran's complaints of fatigue and sleeplessness were essentially manifestations/symptoms of his PTSD. The Board thereby finds that the medical evidence of record fails to establish that the Veteran has a currently diagnosed chronic fatigue or sleep disorder. Consideration has also been given to the question of service connection for a chronic fatigue or sleep disorder under the provisions of 38 C.F.R. § 3.317. The Veteran has alleged that his sleep and fatigue problems are an undiagnosed illness that resulted from his service in Southwest Asia. Although the above paragraphs discuss the lack of a diagnosis of a chronic fatigue or sleep disorder, the Board finds that the Veteran's complaints of chronic fatigue and sleeplessness do not qualify as manifestations of an undiagnosed illness under 38 C.F.R. § 3.317 either. As noted above, compensation under 38 C.F.R. § 3.317 may only be granted in cases where a veteran's symptoms are by history, physical examination, and laboratory tests not attributable to any known clinical diagnoses. 38 C.F.R. § 3.317(a)(1)(ii) (2012). However, the Veteran has been afforded VA examinations and opinions to determine the nature and etiology of his fatigue and sleep complaints. Notably, a May 2013 addendum opinion from a VA examiner concluded that the Veteran's complaints of fatigue and sleeplessness are symptoms of his separately service-connected PTSD. The May 2013 examiner relied on the April 2013 VA examination showing that the Veteran did not have a diagnosis of chronic fatigue syndrome and that his complaints of fatigue, difficulty falling or staying asleep, and chronic sleep impairment were attributable to his PTSD. VA treatment records similarly associate the Veteran's complaints of sleep problems to his psychiatric disorders. Significantly, the Veteran reported improved sleep with adjustments in his psychiatric medications. See VA treatment records, February 2005, April 2006, and June 2006. Although the Veteran does not have a diagnosed fatigue or sleep disorder, his symptoms of fatigue and sleeplessness have been specifically attributed to a known clinical diagnosis - namely, his PTSD. As the fatigue and sleeplessness are shown by the medical evidence to be symptoms of his PTSD, service connection cannot be granted under the regulations allowing for compensation for undiagnosed illnesses. Without medical evidence of a disability manifest by chronic fatigue or sleeplessness, the Veteran does not meet the first requirement set forth in Hickson, and his claims fail on this basis. See Hickson, supra. Thus, service connection for chronic fatigue and sleeplessness may not be granted. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). As the Veteran has failed to satisfy the first element of Hickson, the Board finds the remaining questions of in-service disease or injury and medical nexus to be irrelevant. Consideration has also been given to the Veteran's lay assertion that his problems with chronic fatigue and sleeplessness are due an undiagnosed illness. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a sleep disorder, including chronic fatigue syndrome, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Chronic fatigue syndrome is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that psychiatric testing, sleep studies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report sleep disturbance and fatigue symptoms, there is no indication that the Veteran is competent to provide an opinion as to the cause of the symptoms/problems. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating sleep disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. Accordingly, the Board finds that the claims of entitlement to service connection for chronic fatigue and sleeplessness must be denied under any theory of entitlement. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for chronic fatigue, to include as due to undiagnosed illness, is denied. Entitlement to service connection for sleeplessness, to include as due to undiagnosed illness, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs