Citation Nr: 1337347	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  10-16 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a disorder manifested by chronic fatigue.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1988 to April 1991 and from October 1994 to August 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  The Board previously considered this issue in October 2012 and remanded the case to the Agency of Original Jurisdiction (AOJ) for an additional examination.

An additional examination and opinion were given by a VA examiner in December 2012.  The examiner substantially complied with the remand directives and a further remand is not required.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 


FINDINGS OF FACT

The Veteran does not have a current disability primarily manifesting as chronic fatigue.  The competent evidence attributes his fatigue due to sleep disturbance, which is a symptom of his posttraumatic stress disorder (PTSD).


CONCLUSION OF LAW

The criteria for an award of service connection for a disorder manifested by chronic fatigue have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1118, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran raised a claim of service connection for chronic fatigue in September 2009, which was denied by the RO in a December 2009 rating decision.  The Veteran appealed, asserting that he has sought treatment for fatigue throughout the years since service.  As discussed above, the Board recharacterized the issue to include any disorder causing fatigue and remanded the case for further medical development.  

I. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  These notice requirements apply to all elements of a claim, including the degree and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).

In October 2009, the RO sent a letter to the Veteran providing him notice, which satisfied the requirements of the VCAA.  See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b).  This letter was sent prior to initial adjudication of his claim.  The Veteran was informed of what evidence and information he needed to substantiate his claim, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman.  The Board concludes that the contents of the letter complied with the requirements of the VCAA and, therefore, the duty to notify was satisfied.

Next, VA has a duty to assist the Veteran in the development of claim.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered.  The Veteran was afforded two VA examinations for his fatigue in July and December 2012.  There is no argument or indication that the examinations or opinions are inadequate.  He had an opportunity to submit additional evidence and he provided statements in support of his claim.  The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence.  

As mentioned above, the Board remanded this case for a second VA examination to determine if the Veteran had a current disability causing his fatigue.  In the December 2012 examination, the examiner addressed chronic fatigue syndrome and sleep apnea as possible medically unexplained multi-symptom illnesses and gave an opinion as to the cause of his fatigue.

For all of the above reasons, the Board finds that the AOJ substantially complied with the remand instructions, and no further development is needed.  See D'Aries, 22 Vet. App. at 106.  VA has satisfied its duties to notify and assist the Veteran in compliance with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , and 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim decided herein.

II. Analysis

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  

Alternatively, service connection may be granted to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, meaning an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, provided that such a disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and cannot be attributed to a known diagnosis.  38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.

Here, the Veteran served in the Southwest Asia theater of the Persian Gulf War when he was deployed to Iraq from August 1990 to March 1991.  As such, he had qualifying service for consideration under 38 C.F.R. § 3.317.

In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Board has an obligation to provide reasons and bases supporting its decision; however, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Rather, the law requires only that the Board provide reasons for rejecting material evidence favorable to the Veteran.  Timberlake v. Gober, 14 Vet. App. 122, 123-29 (2000).  Therefore, the analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.

At the outset, the Board finds that the evidence does not demonstrate a current disability and service connection cannot be granted.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Veteran reported experiencing fatigue since service, including in the early afternoon on most days, although his job does not require physical exertion.  See VA Examinations July 2012; VA treatment July 1997.  He is competent to report symptoms of fatigue but diagnosis of the cause of fatigue requires specialized knowledge and experience to understand the complex nature of sleep and the interworking of body systems.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  As to the reports of fatigue, the Veteran is found credible, as his assertions have been consistent and are reflected in the medical record.

Service records show a complaint of fatigue in April 1995.  Additionally, the Veteran reported fatigue during VA treatment in July 1997 and May 2006.

In July 2012, the VA examiner opined that the nature of the Veteran's fatigue was not consistent with chronic fatigue syndrome and concluded that he did not have a diagnosis.  In December 2012, the VA examiner again found that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome.  Specifically, he did not have debilitating fatigue severe enough to reduce daily activity by 50 percent and does not have low-grade fever, headaches, palpable lymph nodes or any other symptoms associated with the condition.  See VA Examinations July and December 2012.  

In December 2012, the VA examiner also found no evidence to indicate a diagnosis of sleep apnea.  The Veteran reported no history of snoring, disturbances in breathing while asleep, or excessive daytime hypersomnulence.  The Veteran and his wife reported being familiar with the signs and symptoms of sleep apnea and did not believe he had any symptoms.  The examiner found that a polysomnogram was not necessary and concluded the Veteran did not have sleep apnea and therefore such was not the cause of his fatigue.  See VA Examination December 2012

Further, the 2012 VA examiner concluded that the Veteran's fatigue was more likely due to sleep disturbances associated with his service-connected PTSD.  The 2012 VA examiner's conclusion is supported by the Veteran's report that in 2009, VA personnel also reasoned that his fatigue was caused by his PTSD.  See Veteran's Statement January 2010. 

A disorder or condition with symptoms that are duplicative or considered part of another disability should not be rated as a separate disability, but instead should be considered part of the symptomotology of the first disability.  See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Based on the above evidence, the Veteran's fatigue is a symptom of his PTSD and not a separately ratable disability.    

Service connection may not be granted where there is no present disability shown.  See Brammer, 3 Vet. App. at 225.  As such, analysis of the other elements of direct service connection is unnecessary and the claim is denied.  

Likewise, service connection cannot be granted under the provisions of 38 C.F.R. § 3.317 is also not warranted here.  Indeed, the VA examiner did not diagnose any chronic multi-symptom disease, there is no such clinical finding in treatment records, and the Veteran has not presented any evidence of such a medical finding.  The examiner concluded that the Veteran did not have chronic fatigue syndrome.  See VA Examination December 2012.  Further, the claimed fatigue has been attributed to another known diagnosis, the Veteran's PTSD and thus is not undiagnosed or medically unexplained in this case.  Thus, no qualifying chronic disability is established.  

The Board notes that, as a layperson, the Veteran is not competent to opine as to the etiology of his fatigue, as such inquiry extends beyond that capable of observation via the senses.  Thus, despite his sincere contentions, service connection cannot be awarded on this basis.  Barr, 21 Vet. App. 303, 307-08 (2007); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In summary, the preponderance of the evidence is against service connection for a disorder resulting in chronic fatigue, to include under the provisions of 38 C.F.R. § 3.317.  The benefit of the doubt doctrine does not apply and the claim must be denied.


ORDER

Service connection for a disorder resulting in chronic fatigue is denied.


____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs