Citation Nr: 1331095 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 97-10 198A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an undiagnosed illness, claimed as Gulf War Syndrome, to include chronic fatigue syndrome and fibromyalgia. 2. Entitlement to an increased rating greater than 20 percent for lumbosacral strain. (The issues of entitlement to service connection for a thoracic spine disability and a cervical spine disability are the subject of a separate decision.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from April 1990 to September 1991, with service in Southwest Asia (Persian Gulf). This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 1995 and September 1996 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which continued the Veteran's existing 10 percent rating for his service-connected low back disability. Thereafter, a subsequent February 1997 statement of the case increased the rating to 20 percent, effective March 23, 1995 (the date of the Veteran's claim for increased rating). Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's claims were remanded by the Board in August 2004 for additional development and in December 2011 for a Board hearing. In addition, the Board notes that in a June 2012 rating decision the Veteran was granted entitlement to service connection for irritable bowel syndrome (IBS). This decision was a complete grant of benefits with respect to this issue and its associated symptoms. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, any symptoms relating to the Veteran's IBS that the Veteran relates to his claimed Gulf War Syndrome, such as diarrhea, will not be considered or discussed further with respect to the above claim on appeal. In June 2013, the Veteran testified at a hearing in the Cleveland, Ohio RO before the undersigned. A transcript of the hearing has been associated with the Veteran's Virtual VA electronic claims file. The record reflects that during the Board hearing the Veteran requested that additional VA treatment records be associated with his claims file, which occurred, and waived initial review by the agency of original jurisdiction of this evidence in accordance with 38 C.F.R. § 20.1304 (2013). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The issue of entitlement to an increased rating for lumbosacral spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is a Persian Gulf Veteran. 2. Affording the Veteran the benefit of the doubt, he had chronic fatigue syndrome and fibromyalgia during the appellate time period that became manifest to a degree of at least 10 percent. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, chronic fatigue syndrome and fibromyalgia are presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317, 4.88a, 4.88b, Diagnostic Code (DC) 6354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to the undiagnosed illness claim, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Service Connection 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 & Supp. 2012). 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) (2013). 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). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, arthritis of any joint not separately service connected was not diagnosed in service or within one year of separation from service and, as such, service connection for these disorders may not be granted on a presumptive basis. In the present case, the Veteran has contended that he suffers from symptoms including headaches, rash, night sweats, fatigue, and joint pain that are a manifestation of one or more undiagnosed illnesses resulting from his service in the Southwest Asia theater of operations from October 1990 to April 1991. In the alternative, the Veteran asserts that his symptoms are the result of one or more multi-symptom illness, specifically fibromyalgia or chronic fatigue syndrome. With regard to such claims, in November 1994, Congress enacted the Persian Gulf War Veterans' Benefits Act, as title I of Public Law No. 103-446. That statute, in part, added a new section 1117 to title 38, United States Code, authorizing VA to compensate any Persian Gulf Veteran suffering from a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. In establishing the presumptive period, the Secretary was to review any credible scientific or medical evidence, the historical treatment afforded other diseases for which service connection is presumed, and other pertinent circumstances regarding the experience of Persian Gulf Veterans. In February 1995, VA implemented the Persian Gulf War Veterans' Benefits Act by adding a regulation at 38 C.F.R. § 3.317, which defined qualifying Gulf War service, established the presumptive period for service connection, and denoted a broad but non-exclusive list of signs and symptoms which may be representative of undiagnosed illnesses for which compensation may be paid. In the original version of 38 C.F.R. § 3.317, the presumptive period during which a Veteran had to experience manifestations of a chronic disability was two years after the date on which he last performed active service in the Southwest Asia theater of operations during the Gulf War. In April 1997, VA published an interim rule which extended the presumptive period to December 31, 2001. This extension of the presumptive period was adopted as a final rule in March 1998, and, in October 1998, Public Law No. 105-277, §1602(a)(1), added 38 U.S.C.A. § 1118, which codified the presumption of service connection for manifestations of an undiagnosed illness. The Veterans Education and Benefits Expansion Act of 2001 (VEBEA), Public Law No. 107-103, 115 Stat. 976 (2000), amended various provisions of 38 U.S.C.A. §§ 1117, 1118. Section 202 of the VEBEA re-styled the term "chronic disability" in 38 U.S.C.A. § 1117 as "qualifying chronic disability," and expanded compensation availability for Persian Gulf Veterans to include "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", as well as "[a]ny diagnosed illness that the Secretary determines in regulations . . . warrants a presumption of service-connection." The VEBEA also codified, in statute, with slight modification, the non-exclusive list of signs or symptoms recognizable under 38 C.F.R. § 3.317(b), in new 38 U.S.C.A. § 1117(g), to include (2) Unexplained rashes or other dermatological signs or symptoms and (3) Headache. In addition, the VEBEA extended the presumptive period, during which an undiagnosed illness must be manifested to the requisite 10 percent degree, to December 31, 2006. The changes effected by the VEBEA were mandated to become effective on March 1, 2002. The presumptive period has since been extended to December 31, 2016. To afford the Veteran the maximum benefit of the law, to whatever extent those changes are pertinent to the issues in this case, the Board will consider both the pre- and post-VEBEA law. In order to obtain a grant of service connection pursuant to 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (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) which became 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 C.F.R. § 3.317(a); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome (IBS), as the Secretary has not determined that any other conditions meet the criteria for a medically unexplained chronic multi symptom illness. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2) (2013); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). 38 C.F.R. § 3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. See 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (amending 38 C.F.R. § 3.317(c) to allow for presumptive service connection for nine infectious diseases.) As none of the enumerated diseases are at issue in this case, the Board has omitted listing the diseases or discussing them. Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a). "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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, 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). Lastly, compensation shall not be paid under section 3.317 if there is 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; if 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 if 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). A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d) (2011); 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (reordering this part of the regulation to 38 C.F.R. § 3.317(e)). The Persian Gulf War is defined as the period beginning August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law. 38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i). The Veteran's military records document that he served in Southwest Asia during the pertinent time period. Therefore, the above-described provisions possibly apply to this case. The Veteran contends that he has symptoms including headaches, rash, night sweats, fatigue, and joint pain due to one or more undiagnosed illness stemming from his service in Southwest Asia. In the alternative, he contends that he suffers from one or more chronic multi-symptom illness, specifically fibromyalgia or chronic fatigue syndrome. The crucial inquiry here that must be addressed is whether the evidence supports a finding of a "qualifying chronic disability" or manifested by an undiagnosed illness or "medically unexplained chronic multi-symptom illness" as defined above. The Veteran's service treatment records are silent as to any headaches, night sweats, or fatigue prior to his service in Southwest Asia beginning in October 1990. In April 1990, however, the Veteran did report bilateral ankle problems, as well as tenderness over the heels and balls of his feet. The assessment was foot pain and left tibia pain. Thereafter, there were ongoing complaints of left ankle pain, but no further reported problems involving the right ankle. The Board notes at this time that the Veteran already is service connected for a left ankle disability. In April 1990, the Veteran also separately complained of left hip pain for one day after a fall while playing basketball. The assessment was contusion. In addition, in June 1990, the Veteran was diagnosed with a rash from poison ivy. After the Veteran's service in Southwest Asia, with respect to the Veteran's current symptoms he attributes to his service in Southwest Asia, during the remainder of his active service he sought treatment only for skin problems. Specifically, in May 1991 the Veteran was treated for actinic keratoses on his forehead and right wrist. The Veteran waived a separation physical examination. Shortly after separation from service, the Veteran brought claims for entitlement to service connection for left ankle and back injuries. In addition, a June 1992 VA treatment record included complaints of chronic fatigue and skin problems involving the feet. On examination, the Veteran had peeling eczema on the plantar surface of the toes of both feet. A separate June 1992 private treatment record also noted open lesions on the feet that had "continued for the past year since he came back from the service." In July 1992, the Veteran's reported complaints included aching joints, fatigue, and headaches. All of his symptoms had started since returning from Southwest Asia. The assessment was that the wide range of chronic symptoms "may be related to PTSD and psychological factors," but also could be related to a connective tissue disorder. The Veteran was afforded a VA examination in August 1992. At that time, the Veteran reported fatigue and nervousness since returning from Southwest Asia and that he currently was prescribed Prozac. On examination, posture, gait, and carriage were normal. Skin also was normal. The Veteran did not report any problems with headaches, rash, night sweats, or speech problems at that time. A September 1992 VA treatment record included complaints of vague aches and pains in the shoulders, elbows, wrists, and knees, as well as the ankles and low back. The Veteran was afforded a VA examination for his back and left ankle in October 1992. At that time, examination of the right ankle was normal. A February 1993 VA treatment record included the Veteran's report of being diagnosed with fibromyalgia in October 1992 from Rheumatology and reported ongoing problems with his knees, ankles, back, and hips, but no involvement of the elbows or wrists. The assessment was possible fibromyalgia. A separate February 1993 record included diagnostic impressions of chronic fatigue syndrome and fibromyalgia, although this diagnosis appears to have been based on the Veteran's report of such diagnoses, as the record noted that the Veteran's chart had not been reviewed and that he had reported such prior diagnoses. The Veteran filed his claim for Gulf War Syndrome in April 1995. At that time, the Veteran's reported symptoms included diarrhea, dry eye, nausea, headaches, sore gums, joint pain, skin spots, sleep problems, and breathing problems. The Veteran was afforded a VA examination in January 1996 for his claim. The Veteran reported pain in the knees, ankles, and shoulders. The Veteran discussed ongoing treatment for fibromyalgia and chronic fatigue syndrome and the examiner concurred that the reported symptoms were "highly suggestive" of these disorders. On examination, the Veteran appeared to be in mental distress, rather than physical distress. Skin was normal. The assessment was arthralgia of the knee and ankle joints that "could be manifestations of fibromyalgia and chronic fatigue syndrome." A July 1996 VA treatment record also included a diagnosis of fibromyalgia, although examination was normal except for some tenderness to palpation in the cervical and lumbar vertebra and bilateral upper trapezius. In another July 1996 record, the Veteran claimed to have been diagnosed with fibromyalgia six months previously. An August 1996 VA treatment record, however, made clear that the Veteran's diagnosis of fibromyalgia was not definitive, as it noted that while two treatment providers had diagnosed fibromyalgia, two other treatment providers concluded that the Veteran did not have fibromyalgia. In September 1996, the Veteran was hospitalized for symptoms that included a five day history of headache, diarrhea, and myalgia. The assessment was irritable bowel syndrome and questionable Gulf War syndrome. An October 1996 treatment record indicated that the Veteran's reported arthralgias with malaise and fatigue had been investigated on numerous occasions, but that no definitive diagnosis had been made. In January 1997, the Veteran was treated for acne vulgaris with folliculitis of the scalp and benign nevi of the back. A June 1997 private treatment letter indicated that the Veteran's symptoms of Gulf War Syndrome had started in June or July of 1991 and the symptoms included aches and pains in all the muscles and joints of the body. The examiner noted the Veteran's attributions of his symptoms to Gulf War Syndrome, but stated, "As you know, no one has a clear definition of this syndrome and this examiner also is not clear what explains his symptomatology." During a July 1997 RO hearing, the Veteran contended that his symptoms relating to his service in Southwest Asia included headaches, diarrhea, joint pain, burning joints, night sweats, fatigue, dry mouth, and rashes and sores. In January 1998, the Veteran was treated for ongoing scalp lesions, for which the Veteran was failing to use his prescribed topical medications. A November 1998 private treatment record noted a history of Gulf War Syndrome, with symptoms that included night sweats. In December 1999, the Veteran was seen for chronic muscular pain and headaches. The treatment provider noted a past diagnosis of either fibromyalgia or myofacial pain syndrome, as well as chronic fatigue syndrome. There also was a notation of possible Gulf War Syndrome. The Veteran had tenderness to palpation over many joints and muscles, but retained full range of motion, muscle strength, and reflexes. The impressions included fibromyalgia and chronic fatigue syndrome. In March 2000, the Veteran was diagnosed with neurodermatitis for lesions on the scalp, anterior chest, back, and proximal arms. In another March 2000 record, the Veteran was diagnosed with acne and folliculitis. The Veteran was afforded a VA examination in July 2003 that was primarily for his service-connected low back disability. In addition, however, the examiner considered whether the Veteran's joint pain and other symptoms could be categorized as chronic fatigue syndrome or fibromyalgia. On examination, posture and gait were normal. There were noted limitations of motion of the back, but no other joint problems discussed. The examiner concluded that the Veteran had chronic depression without evidence of additional chronic fatigue syndrome or fibromyalgia. A January 2006 VA treatment record from a clinical psychologist noted Axis III diagnoses of fibromyalgia and chronic pain. In October 2007, the Veteran was diagnosed with acne necrotica miliaris/variolaformis and poikiloderma with increased pigment. The examiner was afforded a VA examination in May 2008. The examiner noted review of the claims file. The examiner noted that the Veteran had been evaluated by a rheumatologist during his July 2003 VA examination, at which time the Veteran was not found to meet the criteria for a diagnosis of chronic fatigue syndrome or fibromyalgia. At the time of the May 2008 examination, the Veteran contended that his symptoms of Gulf War Syndrome included headaches, skin rashes/sores, joint pain (including the shoulders, hips, knees, and ankles), chronic fatigue, and diarrhea. The Veteran reported onset of joint pain in October 1991, as well as night sweats, headaches, fatigue, and diarrhea. He reported headaches three times per week. The Veteran reported skin problems since returning from Southwest Asia and the examiner noted past diagnoses of seborrheic dermatitis, acne, and folliculitis. X-rays of the shoulders and ankles were normal, but there were mild degenerative changes in the bilateral knees and hips. The examiner diagnosed tension headaches, which he indicated were not related to any Gulf War undiagnosed illness; seborrheic dermatitis/acne and folliculitis, which were not related to any Gulf War undiagnosed illness; arthritis of the bilateral knees and Achilles tendons, which were not related to any Gulf War undiagnosed illness; and no finding of chronic fatigue syndrome or fibromyalgia. The examiner noted that she concurred with the 2003 findings of Rheumatology that the Veteran did not have these disorders. The Veteran was afforded another VA examination in December 2012. The examiner noted review of the claims file and medical records. At that time, the Veteran reported skin rashes, delayed vocal response, night sweats, sensitivity to smell, and bilateral shoulder, bilateral knee, and right hip pain. The examiner noted that past examinations had attributed the Veteran's night sweats to his service-connected PTSD. The examiner noted that two previous VA examinations had not shown the Veteran to have chronic fatigue syndrome or fibromyalgia. At the time of the present examination, the Veteran also did not meet the requirements for a diagnosis of chronic fatigue syndrome or fibromyalgia. In summary, the examiner stated concurrence with the July 2003 VA examination report findings that the Veteran did not meet the requirements for chronic fatigue syndrome or fibromyalgia and that these problems were unrelated to service in Southwest Asia. The Board notes that the definition for chronic fatigue syndrome for VA purposes is the following: (1) new onset of debilitating fatigue severe enough to reduce the 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) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid stage), (viii) migratory joint pains, (ix) neuropsychological symptoms, (x) sleep disturbance. 38 C.F.R. § 4.88a (2013). The question of whether the Veteran has chronic fatigue syndrome and fibromyalgia is complex in nature. The Board notes that there are opinion concluding both that the Veteran has chronic fatigue syndrome and that he does not. The most recent evidence of record has indicated that at the point of time of those examinations, for example the May 2008 and December 2012 VA examination reports, and, indeed, the Veteran concedes that in recent years his service treatment providers have concluded that he does not currently meet the criteria for chronic fatigue syndrome or fibromyalgia. That said, the Veteran clearly was diagnosed consistently with chronic fatigue syndrome and fibromyalgia for multiple years after service and he has consistently complained of symptomatology that fit into the criteria in particular for chronic fatigue syndrome under the relevant DC. See 38 C.F.R. § 4.88b, DC 6354 (2013) (rating criteria for chronic fatigue syndrome). The requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim; a Veteran may be granted service connection even though the disability resolves or remits prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In view of the probative medical opinion evidence, the Board finds that the Veteran had chronic fatigue syndrome and fibromyalgia at some point during the appellate time period. According to 38 C.F.R. § 3.317(a)(2), chronic fatigue syndrome and fibromyalgia are medically unexplained chronic multisymptom illnesses. Thus, chronic fatigue syndrome and fibromyalgia are considered qualifying chronic disabilities under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In addition, the Board acknowledges that some of the symptoms the Veteran has linked to his chronic fatigue syndrome and fibromyalgia, or otherwise to an undiagnosed illness have been attributed to a specific diagnosis. The Veteran's diagnoses include psychiatric disorders, tension headaches, suborrheic dermatitis, folliculitis, neurodermatitis, acne, gastroesophageal disease/hiatal hernia and degenerative arthritis of the right ankle, bilateral knees, and bilateral hips. Given the diagnoses of specific disorders and the unappealed denial of some of these claims on a direct basis in the June 2007 rating decision, the Board concludes that further consideration of these symptoms as an undiagnosed illness, chronic fatigue syndrome and fibromyalgia is not warranted. Unlike service connection on a direct basis, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent evidence of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.317(a)(7); Gutierrez, 19 Vet. App. at 1. The Veteran's chronic fatigue syndrome and fibromyalgia may have become manifest during active military service shortly after returning from the Southwest Asia theater of operations during the Persian Gulf War as evidenced by his lay statements regarding in-service symptoms. In any event, the Veteran's chronic fatigue syndrome and fibromyalgia became manifest to a degree of at least 10 percent after his Persian Gulf service. During the course of the claim, the Veteran has been prescribed medication for his symptoms and has been found credible in his assertions of symptoms by multiple medical professionals. These symptoms more likely than not meet the criteria for a 10 percent rating, which requires that the symptoms be controlled by continuous medication. See 38 C.F.R. § 4.88b, DC 6354. Consequently, affording the Veteran the benefit of the doubt the criteria for service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are met. While the Board recognizes and has considered the negative medical opinions of record that suggest that in recent years the Veteran has not met the criteria for a diagnosis of chronic fatigue syndrome or fibromyalgia, these opinions do not question the validity of prior evaluations that included the diagnoses of chronic fatigue syndrome and/or fibromyalgia. As such, the Board concludes that there is no affirmative evidence contrary to the Board's findings, as contemplated by 38 C.F.R. § 3.317(a)(7). Therefore, service connection for chronic fatigue syndrome and fibromyalgia is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for chronic fatigue syndrome and fibromyalgia is granted. REMAND The Veteran also contends that his current 20 percent rating for lumbosacral strain does not accurately reflect the severity of his low back disability. Despite the extensive development already undertaken in this case, the Board concludes that a remand is required for additional development. During his June 2013 Board hearing, the Veteran testified credibly that his low back disability had increased in severity since the most recent April 2012 VA examination. Specifically, the Veteran indicated that his back problems had dramatically worsened over the course of the previous 18 months. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). While the Board recognizes that the April 2012 VA examination occurred within that 18 month period, given the Veteran's credible testimony of worsening symptomatology with increased pain medication prescribed, the Board concludes that another VA examination is warranted. In addition, the Veteran testified to receiving on-going, regular treatment for his low back disability through VA facilities. In addition, he testified that an MRI was to be scheduled to determine the current severity of his low back disability. The most recent VA treatment records in the claims file date to June 2013. Efforts must be made to obtain VA treatment records from that point to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records dating from June 2013. 2. After the above evidence is obtained, to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected low back disability. The complete claims file must be provided to the examiner for review in conjunction with the examination, and the examiner should note that it has been reviewed. Attention is invited to the Veteran's credible hearing testimony describing the effects and symptoms of his service-connected low back disability. In addition, as the Veteran's claim for increased rating was filed prior to the most recent revision of the regulations used for determining the disability rating for lumbosacral strain, the examiner is asked to provide an opinion as to whether the Veteran currently has or has had since the early 1990s: (a) Listing of the whole spine to the opposite side; (b) A positive Goldthwaite's sign; (c) Marked limitation of bending in standing position; (d) Loss of lateral motion with osteo-arthritic changes; or (e) Narrowing or irregularity of joint space; or (f) Some of the above with abnormal mobility on forced motion. 3. After the above is complete, readjudicate the Veteran's claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs