Citation Nr: 1335433 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-00 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome, to include as due to an unexplained chronic multisymptom illness. 2.Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 3. Entitlement to service connection for headaches, to include migraines, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1989 to June 1992, September 2001 to March 2002, and October 2003 to April 2004. He served in the Southwest Asia theater of operations during the Gulf War era from October 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Buffalo, New York, which in part denied service connection for connection for chronic fatigue syndrome and migraines, both to include as due to an undiagnosed illness. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran has not been diagnosed with chronic fatigue syndrome. 2. The Veteran's fatigue has been attributed to sleep disturbances due to posttraumatic stress disorder (PTSD). 3. An undiagnosed illness manifested by fatigue was not shown to have become manifest in service or to be related to service, to include service in the Persian Gulf. 4. Headaches, to include migraines, were not shown to have become manifest in service or to be related to service, to include service in the Persian Gulf. CONCLUSIONS OF LAW 1. A medically unexplained chronic multisymptom illness, manifested by chronic fatigue syndrome, was not incurred in or aggravated by active duty military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 2. Fatigue, due to an undiagnosed illness, was not incurred in or aggravated by active duty military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 3. Headaches, to include migraines, are not due to an undiagnosed illness, and were not incurred in or aggravated by active duty military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. § 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in June 2010, prior to the October 2010 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's available service treatment records and post-service medical records are in the claims folder. The Veteran was provided a VA examination in June 2010. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran declined to present testimony in support of his claims. Therefore, the duties to notify and assist have been met. Chronic Fatigue Syndrome and Fatigue The Veteran essentially contends that he has chronic fatigue syndrome, as due to a medically unexplained chronic multisymptom illness that was incurred during his service in the Gulf War. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110; 1131 38 C.F.R. § 3.303 (2013). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War during his first period of service (e.g. January 1989 to June 1992), service connection may also be established under 38 C.F.R. § 3.317. Service connection may be established 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(a)(1) (West 2002); 38 C.F.R. § 3.317(a)(1) (2013). A "qualifying chronic disability" includes: (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(i) (2013). Among the requirements for service connection for a disability due to an undiagnosed illness is that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii) (2013). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(c) (2013). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 at paragraphs 4-5 (Aug. 3, 1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board notes that the Veteran was afforded a VA examination in June 2010. The Veteran's complaint was that he felt tired all the time with no relief. The Veteran reported an onset of 1992, and stated that he started to feel tired with soreness in Fort Bliss after returning from Desert Storm. He reported being able to function in the service and presently, and stated he just lived with the symptoms. He was never seen for this problem in service. The report also noted the Veteran said that it worsened over the years and he is always tired. The Veteran stated he feels tired and weak with no strength even though he is not working. He had sleep problems and has been taking sleeping pills which help him sleep 4 to 5 hours a night. The examiner noted that the Veteran does not sleep well at night due to his PTSD and has not been diagnosed with chronic fatigue syndrome. Upon review of the claims folder and evaluation of the Veteran, the examiner noted that the Veteran's fatigue was more likely than not related to poor sleep with PTSD as he was shown to have sleep disturbance due to PTSD. The examiner could not diagnose the Veteran with chronic fatigue syndrome. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for chronic fatigue syndrome as due to a medically unexplained chronic multisymptom illness, because the examiner concluded that he could not render a diagnosis of chronic fatigue syndrome. Because the Veteran's complaints of fatigue have been medically associated with a diagnosed disability, PTSD, there is no evidence of record indicating the presence of a medically unexplained chronic multisymptom illness due to his Gulf War service. The Board also notes that there is also no indication that the Veteran's fatigue is due to an undiagnosed illness. Indeed, the Veteran's fatigue has specifically been attributed to a diagnosed medical disability, sleep disturbances due to PTSD. Thus, the Veteran's service connection claim for fatigue as due to an undiagnosed illness must be denied. Although service-connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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). In view of the evidence of record, the Board concludes that service connection for fatigue is not warranted because he does not have a current disability of chronic fatigue syndrome, but instead sleep disturbance; and his symptoms are already encompassed within a currently service connected disease, PTSD. As noted by the June 2010 VA examiner, symptoms of fatigue have been associated with sleep impairment and service-connected PTSD. Thus Hickson element (1) is not met. The Board notes that pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. See 38 C.F.R. § 4.14 (2013). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under the schedule of ratings for Mental Disorders, including PTSD, any rating for 30 percent and above service connection contemplates chronic sleep impairment. The Veteran is currently rated at 100 percent for PTSD. See 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2013). Because the Veteran is not shown to have fatigue which is manifested by symptoms other than those already considered in his current rating for service-connected PTSD, as his fatigue has been attributed to sleep impairment, which is specifically contemplated in the diagnostic code for PTSD, the Board finds that service connection for fatigue is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2013). The Board finds the VA examination report probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran and his representative have been accorded ample opportunity to present competent medical evidence in support of his claim; they have failed to do so. See 38 U.S.C.A. § 5107(a) (2013) (it is the claimant's responsibility to support a claim for VA benefits). The Board has not overlooked the Veteran's lay statements as to the etiology of his fatigue. While the Veteran is competent to testify as to his observations, the etiological question with regard to his fatigue is complex and not capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (noting that lay witness capable of diagnosing dislocated shoulder). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render opinions regarding the etiology of his claimed fatigue. See 38 C.F.R.§ 3.159 (a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In the present case, the Board gives more credence and weight to the opinion rendered by the VA examiner, a licensed medical professional, who rendered his findings after extensive evaluation of the Veteran and review of the claims folder. Accordingly, the Board finds that weight of the evidence is against the Veteran's claim, and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Migraines The Veteran also contends that he has migraines related to service, to include as due to an undiagnosed illness. The Veteran reported during his June 2010 VA compensation and pension examination that he had migraines since 1992 in Fort Bliss Texas after returning from Desert Storm. He reported they were in the back of his head on the top and he would have them weekly. They would last about an hour and when he took aspirin they would go away. He reported being dizzy and light-headed with occasional nausea but no vomiting. He stated that over the years he has continued to get headaches and now has them daily. He would get dizzy and light-headed a couple of times a week. The last headache was reported the day before his examination. They occurred on both the left and right side of the head. They dissipated with rest but lasted an hour. The Veteran reported that in the past they have lasted the entire day. During the June 2010 VA examination, the examiner noted that a normal CAT scan found there was no evidence of intracranial hemorrhage or subdural fluid collection. There was no edema or mass effect in the brain. The report also showed no acute fracture, and the ventricles and sulci appeared normal. The upper paranasal sinuses were clear. The overall impression was no acute findings. The examiner reported a diagnosis of occipital headaches of unknown etiology. The examiner opined that after careful review of the C-file, the Computerized Patient Record System (CPRS), a literature review including bromide and anthrax, as well as interviewing the Veteran, that it was his opinion that the Veteran's disabilities were less likely as not caused by smoke from oil fires in Iraq, or anthrax shots and bromide pills while in service. The examiner noted that the Veteran has not been seen or mentioned these complaints to any provider in 19 years and the complaints were most likely due to either normal aging or reasons other than service 19 years ago. The Board finds that the medical evidence is against a finding that the Veteran's headaches are due to an undiagnosed illness. In this regard, the June 2010 VA examiner specifically assigned a diagnosis pertaining to them (i.e. occipital headaches due to unknown etiology). There is no medical opinion to the contrary (i.e. an opinion specifically finding that these claimed disabilities are not attributable to any known clinical diagnosis). Therefore a presumption based on an undiagnosed illness is not applicable in this instance. Although service-connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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). As noted above, the Veteran does have a current diagnosis, therefore Hickson element (1) has been met. As for Hickson element (2), there is no dispute that the Veteran is competent to report events that occurred in service, and to describe his headaches, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. And while the service treatment records do not contain any reports of headaches during service or upon separation, it should be noted that the absence of in-service evidence of disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). With respect to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current disability, and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The June 2010 VA examiner specifically addressed this issue. The examiner opined that after careful review of the C-file, CPRS, a literature review including bromide and anthrax, as well as interviewing the Veteran, that it was his opinion that the Veteran's headaches were less likely as not due to service. Despite the Veteran's contention that he has had headaches since 1992, the examiner found that the Veteran has not been seen or mentioned these complaints to any provider in 19 years and the complaints were most likely due to either normal aging or reasons other than service 19 years ago. The examiner based his opinion on his clinical experience and evaluation of the Veteran that day. To the extent that the Veteran himself or his representative, contend that a medical relationship exists between his current disabilities and service, the Board again acknowledges that lay persons are competent to testify as to observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's current headaches, diagnosed years after service, and any instance of his military service, to be complex in nature such that medical evidence of nexus is required. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the examiner's opinion to be highly probative, because it was rendered after careful review of the C-file, information on CPRS, and a literature review of bromide and anthrax, as well as interviewing the Veteran. Furthermore, the Board has considered the multi-year gap between the Veteran's contended in service manifestation date, 1992, and initial documented evidence of a disability in 2010. The Board also notes that there is no indication that this disability became manifest in service or is otherwise related to service. In this regard, the service treatment records are silent for any headache problems, which did not become manifest until approximately 19 years after service in the Southwest Asia Theater. Nor is there any competent medical evidence otherwise linking headaches to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). Although the Veteran may believe that his current headaches are related to service, including his service in Southwest Asia, as a layperson, his allegations concerning such questions of medical nexus are entitled to minimal probative weight. See e.g. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, given the specific medical evidence discussed above, the weight of the evidence is against an award of service connection for migraines. The weight of the evidence is against this claim and it must be denied. Gilbert, 1 Vet. App. 49, 55 (1990). Therefore, Hickson element (3), nexus, has not been satisfied, and the claim fails on this basis. As the weight of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. Service connection for fatigue, to include as due to an undiagnosed illness, is denied. Service connection for headaches, to include as migraines, to include as due to an undiagnosed illness, is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs