Citation Nr: 1338229	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  13-23 240	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.

2.  Entitlement to service connection inflammatory bowel disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

John Kitlas, Counsel



INTRODUCTION

The Veteran served on active duty from December 1990 to July 1991.  Further, the record reflects he had additional service in the Reserves.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the current appellate claims.

The record reflects that the Veteran also initiated an appeal to a denial of service connection for a pulmonary condition and chronic coughing, which were also denied by the September 2008 rating decision.  However, service connection was established for asthma by a February 2013 rating decision, and it was specifically noted that this constituted a grant of the pulmonary condition and chronic coughing claims; i.e., the asthma included this symptomatology.  Nothing in the record available for the Board's review reflects the Veteran has expressed disagreement with either the initial rating assigned for this disability, or the effective date thereof.  As such, this issue is no longer before the Board.


FINDINGS OF FACT

1.  The Veteran had active service in the Southwest Asia Theater of Operations from December 1990 to June 1991.

2.  The Veteran has been diagnosed with chronic fatigue syndrome, which had its onset in service.

3.  The Veteran has been diagnosed with irritable bowel syndrome and inflammatory bowel disease, which had its onset in service.



CONCLUSIONS OF LAW

1.  Chronic fatigue syndrome was incurred in service.  38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013).

2.  Irritable bowel syndrome and inflammatory bowel disease were incurred in service.  38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this case, the Board finds that service connection is warranted for the Veteran's chronic fatigue syndrome and irritable bowel syndrome and inflammatory bowel disease.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrent symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

The Veteran contends that his chronic fatigue syndrome and gastrointestinal disability are related to toxic exposures during his Persian Gulf service.

The Board observes that VA does not specifically recognize a disability of "Gulf War Illness."  However, various legal provisions apply specifically to compensation claims from Persian Gulf War veterans.  Except as provided in 38 C.F.R. § 3.317(c), VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either 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; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 C.F.R. § 3.317(a)(1)(i) and (ii) (except as to delimiting date) (2013).

For purposes of 38 C.F.R. § 3.317, "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). 

For purposes of 38 C.F.R. § 3.317, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  The 6-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.  38 C.F.R. § 3.317(a). 

For the purposes of 38 C.F.R. § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (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). 

In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection.  38 C.F.R. § 3.317(a).

"Functional gastrointestinal disorders" are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract.  Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and function dysphagia.  These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficulty swallowing.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis.  Id. 

In this case, the record reflects the Veteran had active service in the Southwest Asia Theater of Operations from December 1990 to June 1991.  Further, he has been diagnosed with chronic fatigue syndrome and inflammatory bowel disease (which the RO has acknowledged as a medically unexplained chronic multisymptom illness).  The July 2013 Statement of the Case (SOC) reflects that these claims were denied on the basis that the disabilities were not compensably disabling.  As noted above, the provisions of 38 C.F.R. § 3.317(a) do state that a qualifying disability must become manifest to a degree of 10 percent or more not later than December 31, 2016, for the presumptive provisions to qualify.  However, in this case, the Board finds that service connection is warranted regardless of whether the Veteran satisfies this specific presumptive provision of the applicable regulation.

The Board acknowledges that a June 2011 VA examination found the Veteran did not have a formal diagnosis of chronic fatigue syndrome, while another June 2011 VA examination opined that it was less than 50/50 probability that inflammatory bowel disease was related to military history.  However, more recent VA examinations and opinions in February 2013 diagnose both chronic fatigue syndrome and inflammatory bowel disease, and include opinions relating the etiology thereof to the Veteran's active service.

VA examiners are presumed qualified to render competent medical opinions (See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009)), and both examiners were familiar with the Veteran's medical history from review of physical examination and review of his VA claims folder.  Thus, the opinions appear to be in equipoise as to whether the claimed disabilities are related to service.  As noted above, the Court held in Gilbert that when the evidence is in equipoise the claimant prevails.  In addition, the fact that the regulatory provisions of 38 C.F.R. § 3.317 recognize chronic fatigue syndrome and medically unexplained chronic multisymptom illness as being associated with service in the Southwest Asia Theater of Operations during the Persian Gulf War provides supporting evidence for the positive medical opinions promulgated by the February 2013 VA examiner.  

In view of the above, the Board finds that the competent and credible evidence shows the Veteran's chronic fatigue syndrome and irritable bowel syndrome with inflammatory bowel disease are etiologically linked to his service in the Southwest Asia Theater of Operations and that they are compensably disabling under Diagnostic Codes 6354 and 7346, respectively.  Therefore, resolving all reasonable doubt in favor of the Veteran, service connection is warranted for these disabilities.


ORDER

Service connection for chronic fatigue syndrome is granted.

Service connection for inflammatory bowel disease is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs