Citation Nr: 1336143 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-17 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic constipation, claimed as irritable bowl syndrome, to include as due to undiagnosed illness. 2. Entitlement to service for chronic fatigue syndrome, to include as due to undiagnosed illness. 3. Entitlement to service connection for chronic fatigue secondary to service-connected insomnia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A Cryan, Counsel INTRODUCTION The veteran served on active duty from September 1988 to March 1989 and from December 1990 to July 1991, with additional reserve service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The claim was remanded by the Board in October 2012. The Veteran also perfected an appeal of the issue of entitlement to service connection for insomnia. That issue was remanded by the Board in October 2012. A March 2013 rating decision granted service connection for insomnia. Therefore, that issue has been resolved and is not before the Board. Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issue of entitlement to service connection for chronic constipation is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran does not have chronic fatigue syndrome that is related to active service. 2. The Veteran has chronic fatigue that is caused by her service-connected insomnia. CONCLUSIONS OF LAW 1. Chronic fatigue syndrome was not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by active 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 (2013). 2. Chronic fatigue has been caused by service-connected insomnia. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in December 2008 and January 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim for chronic fatigue syndrome being denied. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, chronic fatigue and chronic fatigue syndrome are not listed chronic diseases. The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2013). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent during a specified presumptive period. 38 U.S.C.A. § 1117(a)(1) (West 2002). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(f) (West 2002); 38 C.F.R. § 3.317(d) (2013). In this case, the Veteran is documented to have had such service. A qualifying chronic disability includes (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that VA determines, in regulations, warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i) (2013). There are currently no diagnosed illnesses that have been determined by VA to warrant a presumption of service connection under 38 C.F.R. §3.317(a)(2)(C). The term 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. 38 C.F.R. § 3.317(a)(2)(ii) (2013). 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) (2013). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom 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) (2013). The Veteran filed a claim of entitlement to service connection for fatigue. The claim for fatigue was interpreted as a claim for chronic fatigue syndrome because the Veteran had qualifying service in the Persian Gulf. The Veteran's service medical records are negative for any complaints, findings, or treatment for fatigue. The Veteran denied fatigue on a chronological record of medical care prepared at the time of her June 1991 separation examination. Private treatment reports from W. Beaman, M.D., show a report of difficulty sleeping in May 2004. Laboratory reports associated with the records dated in April 2003, May 2004, May 2005, May 2006, May 2007, and May 2008 are negative for any pathologic diagnoses. At a June 2009 VA examination, the Veteran reported that she had been fatigued since 2005 when she began having sleep difficulties. The examiner noted that multiple laboratory workups had been negative with normal thyroid studies, normal chemistries, normal liver function tests, and no chronic inflammatory conditions or chronic infections. She reported working four ten hour days at a desk job. She also endorsed trouble sleeping for which she took Ambien. Following a physical examination, the Veteran was diagnosed with subjective complaints of fatigue, nondisabling, without any sign of pathological diagnoses and never treated for chronic fatigue syndrome. At a February 2013 VA examination, the examiner indicated that the Veteran did not have nor had she ever been diagnosed with the chronic fatigue syndrome. The examiner indicated that laboratory workups by her primary providers have been negative and there was no change in her reported symptoms since the June 2009 VA examination. The Veteran reported that she still worked four ten hour work days and was tired by the time her three days weekend began on Friday but she tried to rest on Friday and resumed her normal household activities on Saturday. In an addendum opinion dated later in February 2013, the examiner reviewed the Veteran's claims file and indicated that a diagnosis of chronic fatigue was not warranted based on the examination earlier in February 2013. The examiner noted that the Veteran had recurrent symptoms of fatigue which began at the same time her sleeping problems began. The examiner noted that lab workups for other identifiable physiologic causes of fatigue had been negative. The examiner concluded that the Veteran's fatigue symptoms, which were not considered disabling based on the Veteran's verbal history and medical records, could be attributed to her sleeping problems and ten hour workday schedule. The examiner also reported that the Veteran's fatigue symptoms did not begin during active service. Chronic Fatigue Syndrome In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for chronic fatigue syndrome. In all claims for service connection, the threshold requirement is evidence of a currently diagnosed disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). The record does not show a diagnosis of chronic fatigue syndrome at any time during service or since that time. Moreover, the Veteran does not contend that she has ever been diagnosed with chronic fatigue syndrome. The Board finds that the preponderance of the evidence is against a finding that a diagnosis of chronic fatigue syndrome is warranted. In the absence of a diagnosis of chronic fatigue syndrome related to the Veteran's active duty, the Board finds that service connection is not warranted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has considered all of the evidence of record, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board finds the preponderance of the evidence is against the claim and the claim for chronic fatigue syndrome must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Chronic Fatigue The Board notes that the Veteran's chronic fatigue cannot be directly service-connected as an undiagnosed illness because it is attributed to a known medical causation, her service-connected insomnia. 38 C.F.R. § 3.317 (2013). Furthermore, a disability manifested by chronic fatigue is not shown in service or for years after service and the VA examiner found that the fatigue symptoms did not begin in service. Service connection may be granted where a disability is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (2013). Compensation is payable when a service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The most recent VA examiner indicated that the Veteran's chronic fatigue was attributable to her service-connected insomnia. The examiner provided a persuasive rationale for that opinion. Specifically, the examiner noted that lab workups for other identifiable physiologic causes of fatigue were negative. No other contrary opinions are of record. Having reviewed the complete record, particularly the medical opinion discussed above, the Board concludes that service connection for chronic fatigue on a secondary basis is warranted. The competent medical evidence of record indicates that the Veteran's chronic fatigue is related to service-connected insomnia. There is no credible evidence which contradicts that conclusion. The only medical opinion of record supports the conclusion that the Veteran's chronic fatigue is caused by or a result of service-connected insomnia. Consequently, the Board finds that that service connection for chronic fatigue due to service-connected insomnia is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service for chronic fatigue syndrome, to include as due to undiagnosed illness is denied. Entitlement to service connection for chronic fatigue secondary to service-connected insomnia is granted. REMAND A review of the claims file reveals that a remand is necessary before a decision on the claim of entitlement to chronic constipation can be reached. The Veteran's case was remanded by the Board in October 2012 to obtain a VA examination to determine the etiology of the claimed chronic constipation. At a February 2013 VA examination, the Veteran was diagnosed with chronic constipation. The examiner indicated that the Veteran did not meet the criteria for irritable bowel syndrome. The examiner indicated that the Veteran's constipation had not been determined to be attributable to a known clinical diagnosis and did not provide an opinion as to whether it was related to the Veteran's active service. However, because the Veteran has been diagnosed with chronic constipation, the examiner's failure to render an etiological opinion renders the examination report incomplete. It is unclear if the diagnosis of chronic constipation is known medical condition, or may be the result of an undiagnosed illness. The examiner indicated that chronic constipation had been diagnosed and provided a diagnostic code, but did not indicate definitively whether chronic constipation was a known medical condition, or just a finding. A remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been satisfied, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that the examination is an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Associated with the claims file are VA treatment reports dated in January and February 1997. It is unclear whether there are any additional VA outpatient treatment reports. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain such records should be made. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records since February 1997 and associate them with the claims file. 2. Return the claims file to the VA examiner who conducted the February 2013 VA examination. The examiner should review the claims file and note that review in the examination report. If the February 2013 VA examiner is not available, another examiner with similar expertise should be requested to review the claims file and provide the requested opinion. If any examiner determines that another VA examination is necessary in order to provide the requested opinion, the Veteran should be scheduled for another VA examination. The examiner should also state whether or not the chronic constipation shown is the result of a known medical causation, or itself represents a known medical diagnosis. The examiner should provide an opinion whether it is at least as likely as (50 percent probability or greater) that chronic constipation was caused or aggravated by the Veteran's service or first manifested during the Veteran's service. The examiner must consider any lay evidence of record regarding a continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 3. Then, readjudicate the issue on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs