Citation Nr: 1334703 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-23 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for undiagnosed illness characterized by decreased appetite, decreased sex drive, and bilateral lower extremity pain and stiffness. 2. Entitlement to service connection for insomnia and fatigue. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to September 2004, with service in Kuwait and Iraq from May 2003 to August 2004, and active duty for training (ADCUTRA) from September 1996 to March 1997. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for sinus condition, folliculitis, insomnia, right shoulder condition, decreased appetite, loss of sex drive, stiff joints of the bilateral lower extremities, and fatigue. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2008. A transcript of the hearing is associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. The Veteran withdrew his claim for folliculitis during his July 2008 hearing. In a February 2009 decision, the Board denied service connection for sinus disability, right shoulder disability, hearing loss, and left knee disability. The remaining issues of entitlement to service connection for insomnia, decreased appetite, loss of sex drive, stiff joints of the bilateral lower extremities, and fatigue were remanded for further development. These are the issues currently before the Board. (Service connection for headaches was ultimately granted and dizziness was treated by the agency of original jurisdiction (AOJ) as part of that disability.) As explained below, the medical evidence of record shows that the Veteran's symptoms of decreased appetite, decreased sex drive, and bilateral lower extremity pain and stiffness have been deemed part of an undiagnosed illness whereas the symptoms of insomnia and fatigue have already been contemplated in the Veteran's 100 percent evaluation for posttraumatic stress disorder. Thus the issues have been recharacterized as reflected on the title page. In June 2010 and September 2012, the Board remanded this case for further development. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran's decreased appetite, decreased sex drive, and bilateral lower extremity pain and stiffness are symptoms of an undiagnosed illness. 3. The Veteran's rating for already service-connected posttraumatic stress disorder (PTSD) contemplates symptoms of insomnia and fatigue. CONCLUSIONS OF LAW 1. Service connection for an undiagnosed illness characterized by decreased appetite, decreased sex drive, and bilateral lower extremity pain and stiffness is warranted. 38 U.S.C.A. §§ 1110, 1117, 1118, 5107 (West 2002); 38 C.F.R. § 3.317 (2013). 2. Service connection for insomnia and fatigue is warranted as symptomatic of PTSD. 38 U.S.C.A. §§ 1110, 1117, 1118, 5107 (West 2002); 38 C.F.R. §§ 3.317, 4.14 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran submitted copies of his service treatment records that differed from the official records received from the service department. Specifically, the copies submitted by the Veteran showed in-service complaints of the claimed disabilities. The Forensic Laboratory of the Office of the Inspector General examined these documents and determined that the alterations were made by the Veteran. This suggests that the Veteran altered these documents prior to submission in the hopes of bolstering his claim and are therefore afforded no probative value. Additionally, this falsification of documents weighs strongly against the Veteran's credibility, so much so that the Board finds that the Veteran is not believable. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Direct service connection requires competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2013); 38 C.F.R. § 3.317 (2013). 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 medical nexus 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(c); Gutierrez v. Principi, 19 Vet. App. 1 (2004). As noted in the introduction, the Veteran in the Southwest Asia theater of operations (Kuwait and Iraq) during the Persian Gulf War. Therefore, he is a Persian Gulf Veteran. 38 C.F.R. § 3.317 (d). For purposes of § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. Lay persons are competent to report objective signs of illness. Gutierrez, 19 Vet. App. at 8-9. A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2). 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 or medically unexplained chronic multi-symptom illness include, in relevant part, joint pain, neurologic signs or symptoms, and abnormal weight loss. See 38 C.F.R. § 3.317(b). In this case, the record shows complaints of stiffness and pain in the bilateral lower extremities, decrease appetite, and decreased sex drive. The August 2009 VA examiner noted that the Veteran's complaints of joint pain and poor appetite had not been attributed to a known clinical diagnosis. Similarly, the January 2012 VA examiner noted that it was at least as likely as not that these unexplained chronic symptoms, including joint pains and poor appetite were due to being involved in the Gulf War. While the opinion does not specifically list decreased sex drive, this symptom was included in the opinion request. As the examiner did not provide a separate negative opinion relating to the unnamed symptoms, the evidence is at least in equipoise as to whether this symptom was contemplated in his positive opinion. (The Board assumes that an examiner intends to answer all the questions put to him/her.) Likewise, the record does not show a diagnosis to account for this symptom. Thus, the record shows an undiagnosed illness characterized by stiffness and pain in the bilateral lower extremities, decrease appetite, and decreased sex drive. The Veteran's bilateral lower extremity pain and stiffness has not resulted in a compensable level of limitation of motion, but there is evidence of some limitation of motion and pain. This suggests that the Veteran's bilateral lower extremity pain may entitle him to a 10 percent evaluation. See Burton v. Shinseki, 25 Vet. App. 1 (2011)(holding that the provisions of 38 C.F.R. § 4.59 , which relate to painful motion, are not limited to arthritis). Thus, the requirement that this disability that became manifest to a degree of 10 percent or more not later than December 31, 2016 is satisfied. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2013); 38 C.F.R. § 3.317 (2013). The evidence favors a finding that the Veteran's symptoms of decreased appetite, decreased sex drive, and bilateral lower extremity pain and stiffness are attributable to an undiagnosed illness that has manifested to a degree of 10 percent. Accordingly, service connection for such an undiagnosed illness is warranted. As for insomnia and fatigue, VA examinations have repeatedly associated the Veteran's trouble sleeping and decreased energy with his service-connected PTSD. The Board finds that trouble sleeping is synonymous with insomnia and decreased energy is synonymous with fatigue. Moreover, these symptoms are listed in the rating decisions relating to the Veteran's disability evaluation for PTSD. Thus, they are clearly contemplated by the already service-connected disability. As such service connection is warranted. ORDER Service connection undiagnosed illness, characterized by decreased appetite, decreased sex drive, and bilateral lower extremity pain and stiffness is granted. Service connection for insomnia and fatigue as symptomatic of PTSD is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs