Citation Nr: 1338124 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-15 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an undiagnosed illness manifested by flu-like symptoms. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from January 1983 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case was previously before the Board in October 2012, at which time it was remanded for further evidentiary development. The Veteran's appeal initially also included a claim for service connection for migraine headaches. The RO, however, granted that claim in a February 2013 rating decision. Consequently, the full benefit sought on appeal has been granted and there is no issue remaining for the Board to decide. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Board finds that he has an undiagnosed illness manifested by flu-like symptoms (i.e., fever, fatigue, joint pain and sleep disturbance) that has manifested to compensable degree. CONCLUSION OF LAW An undiagnosed illness manifested by flu-like symptoms was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1117, 1118, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for an undiagnosed illness manifested by flu-like symptoms, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. The Veteran filed his claim for service connection in January 2006, prior to his discharge from active duty, as part of VA's BDD program. On his VA Form 21-526, the Veteran listed "frequently like flu symptoms" as one of the disabilities for which he was seeking service connection. The Veteran's claim essentially appears to be that, upon his return from the Southwest Asia theater of operations in 1991, he began to have fatigue, fever and chills, joint pains, and general malaise that would come and go and, although he sought medical treatment, they were unable to diagnose him with any disorder, and that he has continued to have these symptoms until today. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e). A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, nonmedical 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 disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2) (5). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8-98 (Aug. 3, 1998). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of an analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). In the present case, the Veteran had multiple deployments to the Southwest Asia theater, as well as to other countries; however, he has specifically limited his claim to his deployment in 1991 to the Persian Gulf in support of Desert Storm. The Veteran's DD214 shows he served in Southwest Asia from December 1990 to May 1991. Furthermore, the service treatment records contain a Medical Note from July 1991 that indicates that, during Operation Desert Storm, the Veteran was exposed to Pyridostigmine Bromide tablet (nerve agent antidote) and toxic fumes of burning oil fires in Kuwait, Southwest Asia, from February 1991 to April 1991. Consequently, the Veteran clearly meets the service requirements set forth in 38 C.F.R. § 3.317(e). After reviewing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has an undiagnosed illness manifested by flu-like symptoms that has manifested to a compensable degree. Service treatment records show that the Veteran was seen in January 1992 with complaints of headaches for six days. It was noted that the Veteran had a prior history of this in November 1991 with temperature elevated to 101 degrees for which he was treated with Emycin. On this day, he also had an elevated temperature of 99.1 degrees. The assessment was headache and increased temperature - questionable viral syndrome. The Board notes that, although the treatment record from November 1991 is not in the Veteran's clinical records for some reason, there are reports of laboratory tests conducted in November 1991 that show the Veteran was tested for mononucleosis and strep throat (throat culture), as well as a urinalysis and blood test having been conducted, all of which were normal. In September 2002, the Veteran was noted again to have flu symptoms and a temperature of 99.8 degrees. The above records appear to corroborate the Veteran's statements that he was seen shortly after returning from Southwest Asia but was not diagnosed with anything. However, the medical examination reports do not necessarily show a continuity of him having flu-like symptoms. The Veteran reported at a review medical examination in January 1998 of having flu-like symptoms from November 1991 through February 1993 every six to eight weeks lasting four to six days, and that he was evaluated with no diagnosis and no medications. He also reported having four episodes of shortness of breath during that same period. At a June 2000 medical examination, the Veteran reported having shortness of breath after Desert Storm (since 1991), which was evaluated without diagnosis, although made no report of having flu-like symptoms. A July 2002 Report of Medical History, however, shows he reported that he had shortness of breath after Desert Storm for only two years that had resolved, but again made no report of flu-like symptoms. At the time of his examination in September 2002, however, as indicated above, the Veteran was noted to have flu symptoms and his temperature was 99.8 on his screening. Nevertheless, the medical examination report does not reflect the Veteran was found to have any abnormality relating thereto. At a July 2005 medical examination, he reported neither shortness of breath or episodes of flu-like symptoms. However, at a February 2006 pre-discharge VA examination, the Veteran reported that, starting after his return from Desert Storm in 1991, he developed signs and symptoms of hot and cold, achiness, fever, chills, malaise, and sore and stiff joints, and that he went to medical for treatment but they were not able to diagnose him with any certain condition at that time. He further stated that, within the first couple of years, the signs and symptoms would come and go about every four to five weeks, but they had lessened to about every four to five months at the time of the examination. Physical examination was within normal limits. The examiner stated that there was no pathology to render a diagnosis. In contrast, at the Veteran's May 2006 separation examination, he did not report having flu-like symptoms although he did report shortness of breath, which was noted to have been from August 1991 to November 1993. The examiner found no abnormalities relating to any flu-like symptoms on examination. As to his complaints of shortness of breath, the examiner stated "remote hx of respiratory symptoms likely representing transient response to environmental agents (Desert Storm)." Post-service medical treatment records are silent for complained of flu-like symptoms except for a March 2008 pre-employment examination for a job at Fort Bliss. At this examination, the Veteran reported he had shortness of breath due to exposure to "some type" of chemicals in Desert Storm. He also reported he developed flu-like symptoms which continue to that day, but no shortness of breath. The Veteran also reported other problems related to service such as back problems, bilateral knee pain, and stomach trouble when eating certain foods. The Veteran underwent a Gulf War VA examination in December 2012. At that time, he reported having headaches, fatigue (described as lack of energy and generalized weakness), joint pain (described as diffuse mild aching) and sleep disturbance (described as frequent awakenings and difficulty falling asleep). He related that his symptoms of fatigue, joint pain and sleep disturbance were associated with flu-like illness that occurs every 8 to 10 weeks and lasts 4 to 5 days. Physical examination was essentially within normal limits. The examiner remarked that the Veteran has symptoms but no objective evidence of an illness to categorize as (1) an undiagnosed illness, (2) a diagnosable illness that is medically unexplained, (3) a diagnosable chronic multisystem illness with partially explained etiology, or (4) an illness with a clear and specific etiology and diagnosis, and therefore his flu-like symptoms are not associated with an illness category related to the environmental hazards specified for military service in the Gulf War. In contrast, although this examiner gave a negative opinion that the Veteran's flu-like symptoms are less likely than not related to service, in his rationale the examiner stated that, based on the physical examination conducted, the Veteran had no current objective findings of an illness which might be causing these symptoms. Similarly, review of service treatment records and recent history and physical examinations by his VA physicians show no physical findings, X-ray results or laboratory abnormalities to explain these symptoms. Therefore, the reason his symptoms cannot be attributed to a known diagnosis is the lack of any objective abnormalities that are diagnostic of an illness which would cause these flu-like symptoms. Initially the Board notes that both VA examiners only note a May 2003 service treatment record as showing the Veteran had treatment in service for any type of infection or flu-like illness. However, as previously noted, there are treatment records from 1992 that show treatment for complained of flu-like symptoms, while the May 2003 treatment note merely shows treatment for symptoms of an upper respiratory infection, which is completely different from the Veteran's complaints. Furthermore, the Board notes that the December 2012 VA examiner failed to consider the Veteran's competent statements as to his symptoms when discussing whether there was objective evidence. The term "objective evidence" as used in the context of 38 C.F.R. § 3.317 does not just mean objective medical findings. It also means other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). This includes the Veteran's competent lay statements as to symptoms he experiences. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness.). In order to be probative, however, lay statements must also be credible. In the present case, although the majority of the medical evidence does not show the Veteran's complaints of or treatment for flu-like symptoms that are not attributable to a known diagnosis, the Board finds there is sufficient enough evidence to raise a reasonable doubt to support the Veteran's claim. As a lay person, the Veteran is competent to report on symptoms he is capable of observing such as having a fever, chills, fatigue, joint pain and sleep disturbance. He is also competent to report the onset of such symptoms, which he states was shortly after his return from the Gulf War in 1991. He is also competent to state that he sought medical treatment and was not diagnosed to have any disorder. Furthermore, there is enough evidence to support the Veteran's contentions given the 1992 service treatment record showing treatment starting in November 1991 for headaches and a fever of unknown cause, and the Veteran's reports at some examinations that he either had or continues to have these flu-like symptoms. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As the December 2012 VA examiner failed to take into consideration the Veteran's lay statements as "objective evidence" of his symptoms of undiagnosed illness as defined under 38 C.F.R. § 3.317, his medical opinion lacks probative value. Furthermore, the Board notes that the examiner's statement that the Veteran's symptoms could not be attributed to a known diagnosis because of a lack of objective medical evidence clearly falls within the purview of an undiagnosed illness as set forth in § 3.317. Moreover, the Veteran's statements cannot be said to be not credible because, although they are far and few between, they are fairly consistent. As such, the evidence raises a reasonable doubt as to whether the Veteran has an undiagnosed illness manifested by flu-like symptoms and the onset and continuity of such symptoms. Consequently, in resolving reasonable doubt in the Veteran's favor, the Board finds that he has flu-like symptoms had their onset after his return from serving in Southwest Asia during Operation Desert Storm in 1991 and that he has continued to have these symptoms since that time. However, in order for service connection to be warranted, the evidence still must show that the Veteran's symptoms have manifested to a compensable degree since they did not manifest while he was in the Southwest Asia theater of operations. See 38 C.F.R. § 3.117(a)(1)(i). In order to determine whether the Veteran's flu-like symptoms have manifested to a compensable degree, the Board has reviewed VA's rating schedule and compared it with the symptoms he reported on his VA examinations conducted in February 2006 and December 2012 and finds that the diagnostic criteria for fibromyalgia (Diagnostic Code 5025) are the most consistent with his reported symptoms, especially of fatigue, joint pains and sleep disturbance. The Board also considered rating the Veteran's symptoms by analogy to Chronic Fatigue Syndrome (Diagnostic Code 6354) but, since he has never reported having periods of incapacitation (reported on February 2006 that he never missed work), the Board does not believe that the rating criteria for Chronic Fatigue Syndrome would result in a compensable rating. Diagnostic Code 5025 defines fibromyalgia as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. A note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a. Under Diagnostic Code 5025, a 10 percent rating is warranted for fibromyalgia symptoms that require continuous medication for control. A 20 percent rating is warranted for fibromyalgia symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. Finally, a maximum rating of 40 percent rating is warranted for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. Id. After comparing the Veteran's symptoms, especially of fatigue, joint pain and sleep disturbance, and their frequency as reported at the December 2012 VA examination to the rating criteria under Diagnostic Code 5025 for fibromyalgia, the Board finds that the Veteran's undiagnosed illness manifested by flu-like symptoms would be compensably evaluated. Although the Veteran does not take any continuous medication for his flu-like symptoms, he does experience such symptoms about every 8 to 10 weeks lasting 4 to 6 days. The Board finds that this is comparable to being present one-third of the time. Thus, the Board resolves reasonable doubt that, under Diagnostic Code 5025, a 20 percent disability rating may be warranted for the Veteran's flu-like symptoms. Consequently, the criterion that the Veteran's symptoms have manifested to a compensable degree has been met. In conclusion, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran served in the Southwest Asia theater of operations, that he had the onset of flu-like symptoms shortly after returning from Southwest Asia, that he has continued to have these symptoms since then, and that those symptoms current have manifested to a compensable degree. Consequently, the Board finds that service connection for an undiagnosed illness manifested by flu-like symptoms is warranted. ORDER Entitlement to service connection for an undiagnosed illness manifested by flu-like symptoms is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs