Citation Nr: 1337173 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-23 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for chronic fatigue syndrome, to include consideration as a chronic qualifying disability associated with Persian Gulf service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from June 1964 to June 1967 and from March 1987 to November 1994. He had service in the Southwest Asia theater of operations from June 1991 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Although the appeal also originally included the issue of service connection for posttraumatic stress disorder (PTSD) with depression and anxiety, this benefit was granted by rating decision in May 2010 and is therefore no longer in appellate status. FINDING OF FACT The Veteran does not have chronic fatigue syndrome for VA purposes or a chronic qualifying disability associated with Persian Gulf service. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1131, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317, 4.88a (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants 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 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in November 2006. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and VA treatment records, reviewed Virtual VA and VBMS files, assisted the Veteran in obtaining evidence, and afforded the Veteran a VA examination in August 2012. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The issue before the Board involves a claim of entitlement to service connection for chronic fatigue syndrome, to include consideration as a chronic qualifying disability associated with Persian Gulf service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a chronic disability manifested by certain signs or symptoms 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, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). Consideration of a veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. 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. 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. 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(a)(2-5). Manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). Compensation availability has recently been expanded to include "medically unexplained chronic multisymptom illness," such as fibromyalgia, chronic fatigue syndrome, and functional gastrointestinal disorders. Id. For VA purposes, a diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce 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: acute onset of the condition, low grade fever, nonexudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise. 38 C.F.R. § 4.88a. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). Analysis In a claim received in September 2006, the Veteran reported having fatigue "since returning from overseas." Military personnel records show that the Veteran was stationed overseas in Kuwait from June 1991 to September 1991. Service treatment records are silent for specific complaints of, treatments for, or diagnosis of fatigue. Service treatment records show treatment for other disorders. However, a September 1994 report of medical history filled out by the Veteran upon separation from service shows that even though the Veteran did not specifically indicate that he had fatigue, he did confirm symptoms such as headaches and frequent trouble sleeping. While he denied painful joints, he did confirm painful/"trick" shoulder or elbow and recurrent back pain. Post service treatment records show that at a June 2009 VA mental health appointment, he reported frequent fatigue and sleep problems with restless and interrupted sleep, among other symptoms. However, the only assessment was PTSD. When the Veteran was afforded a VA examination in August 2012, he reported feeling the onset of symptoms in 1993 after following a unit inside a vehicle. He remembered feeling like he wanted to collapse when he got out to talk to a sergeant. He stated that he felt nauseous, a little dizziness and "that everything felt heavy." He felt better after sitting. He was able to continue with required physical training, but found it difficult to run. Since separating from service, he stated that he felt tired all of the time and would tire easily. For diagnosis, the examiner listed chronic fatigue syndrome but stated "not diagnosed" when asked to provide the date of diagnosis. The examiner noted that the criterion of new onset of debilitating fatigue that is severe enough to reduce or impair average daily activity below 50 percent of the Veteran's pre-illness activity level for a period of six months had not been met. The examiner found that the Veteran did not have at least six of the ten chronic fatigue syndrome diagnostic criteria. The examiner then provided a negative nexus opinion and explained that the Veteran does not meet the criteria for chronic fatigue syndrome. Overall, service connection on a direct basis is not warranted. Even though the most current VA examination shows that the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms, the medical evidence does not show a diagnosis of chronic fatigue syndrome with new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and at least six of the symptoms listed in 38 C.F.R. § 4.88a(a)(3). Even though the Veteran reported symptoms in service arguably consistent with chronic fatigue syndrome, the Veteran does not have a current diagnosis for VA purposes pursuant to 38 C.F.R. § 4.88a. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board acknowledges that the Veteran has asserted having fatigue since service (and a September 1994 report of medical history shows reports of symptoms associated with chronic fatigue syndrome), which he is competent to report. The Board further acknowledges the Veteran's assertion that he has chronic fatigue syndrome related to service. However, the Veteran is not competent to render a diagnosis and a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, service connection is not warranted for a chronic disability due to an undiagnosed illness as a June 2009 VA treatment record shows that after complaining of frequent fatigue, sleep problems, among other symptoms, the assessment shows PTSD. Thus, the Veteran's symptoms have been attributed to a known clinical diagnosis. Further, as noted above, by rating decision in May 2010, the RO had granted service connection for PTSD with depression and anxiety. Thus, he has been compensated for his symptoms of fatigue and sleeping problems. Since the Veteran does not have any qualifying chronic disability that has not been attributed to a known clinical diagnosis, service connection due to an undiagnosed illness is not warranted. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for chronic fatigue syndrome, to include consideration as a chronic qualifying disability associated with Persian Gulf service, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs