Citation Nr: 1338574 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-09 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for chronic fatigue syndrome, including as secondary to chronic lymphocytic leukemia (CLL). REPRESENTATION Veteran represented by: Daniel S. Rethmeier, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran had periods of active duty for training (ACTDUTRA) from December 1982 to June 1983, from January 1993 to February 1993, and from April 2001 to May 2001. He also served on ACTDUTRA for a period of time in 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran and his spouse testified at a hearing before the undersigned in June 2010, and a transcript of this hearing has been associated with the record. This matter was previously before the Board in March 2013, when the Board remanded the case for additional development of the evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) FINDING OF FACT The most probative evidence shows that the Veteran has not met the criteria for chronic fatigue syndrome; his fatigue is attributed to his service-connected CLL. CONCLUSION OF LAW Chronic fatigue syndrome was not incurred in or aggravated by active service, and is not a manifest of an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran 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 it does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. 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. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated March 2007 provided all appropriate notification. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. Records from the Social Security Administration, private medical records, and VA medical records have been obtained and reviewed in connection with this appeal. The Veteran was provided with a VA examination in May 2013. The VA examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The opinion is therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran claims that he is entitled to service connection for chronic fatigue syndrome, claimed as secondary to his service-connected CLL. As an initial matter, the Board notes that the Veteran is in receipt of 100 percent disability evaluations for both CLL and major depressive disorder associated with CLL. The question at hand, then, is whether the Veteran suffers from fatigue as a separate and distinct disability from CLL and major depressive disorder for which service connection may be granted. In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to the first Hickson element, there must be competent evidence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (current disability means a disability shown by competent medical evidence to exist at the time of the award of service connection); McClain v. Nicholson, 21 Vet. App. 319 (2007) (current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in absence of proof of a present disability, there can be no valid claim for service connection because Congress has specifically limited entitlement in this manner). Furthermore, pain alone, without a diagnosed or identifiable underlying malady or condition, does not itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Turning to the facts in the instant case, the Veteran complained in-service of headache, body aches, chills, fatigue, and trouble breathing; the Veteran was diagnosed with flu-like syndrome in February 1986. Post-service treatment records indicate that the Veteran sought treatment for chronic fatigue syndrome at Pine River Family Clinic in July 2007. The Veteran reported that he developed chronic fatigue syndrome while in service. The Veteran was assessed with chronic fatigue syndrome and CLL at that time. In September 2007, the Veteran underwent a consultation for possible chronic fatigue syndrome at Park Nicollet Clinic. The Veteran was assessed with CLL and chronic fatigue at that time. The examiner noted that chronic fatigue is a syndrome of profound fatigue of unknown cause without underlying medical illness to account for it. The examiner indicated that he was unable to say for certain whether the Veteran had chronic fatigue syndrome but the most likely explanation for the Veteran's fatigue was his CLL as fatigue would be extremely common. At a June 2010 hearing before the Board, the Veteran testified that he sought treatment for abnormal fatigue during a period of ACTDUTRA. He reported that his symptoms included fatigue, joint pain, fever, and chills. Upon review of this evidence, the Board's March 2013 Remand indicated that it was unclear whether the Veteran had chronic fatigue syndrome as a result of his military service or as secondary to service-connected CLL. The Board indicated that an examination was necessary in order to clarify the nature and etiology of the Veteran's complaints of chronic fatigue. Pursuant to the Board's March 2013 Remand, the Veteran underwent an examination in May 2013. The examiner noted that the Veteran complained of experiencing constant debilitating fatigue. The examiner diagnosed the Veteran with fatigue due to CLL. However, the examiner noted that at least 6 of 10 chronic fatigue syndrome diagnostic criteria had not been met in the Veteran's case. The examiner noted that the Veteran's records only indicated that the Veteran complained of fatigue after his diagnosis with CLL, which is consistent with fatigue as a common symptom of CLL. The examiner stated that the Veteran's fatigue was due to CLL, and the fatigue did not represent chronic fatigue syndrome. The Board finds that the preponderance of the evidence is against the claim for service connection for chronic fatigue syndrome, including secondary to service-connected CLL, because the most probative evidence of record, the March 2013 VA examination report, concluded that it was less likely that the Veteran had a valid diagnosis of chronic fatigue syndrome because 6 out of 10 criteria had not been found to support a diagnosis of the disease. Rather, the Veteran's fatigue was a symptom of his service-connected CLL. Winsett v. West, 11 Vet. App. 420 (1998). That opinion was based on a full review of the record, including the private medical reports, the Veteran's statements, and a thorough clinical evaluation. Bloom v. West, 12 Vet. App. 185 (1999). The examiner also concluded that the Veteran's fatigue was not related to his flu-like symptoms he experienced in service on one occasion. Again, the clinical records document complaints of fatigue after the Veteran's diagnosis of CLL - an such fatigue is a common symptom of that disease. The Board has considered that private clinic record dated in July 2007 showing that he sought treatment chronic fatigue syndrome that he developed while in service. However, the assessment at that time was chronic fatigue syndrome and CLL. The examiner did not document the criteria necessary to establish the diagnosis. Rather, he transcribed the Veteran's assertions. As such, the Board has accorded the statement little probative value. See Winsett, supra; LeShore v. Brown, 8 Vet. App. 406 (1995) (a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.). Notably, at a follow-up consultation the examiner indicated that he was unable to say for certain whether the Veteran had chronic fatigue syndrome. However, the most likely explanation for the Veteran's fatigue was his CLL as fatigue would be extremely common with that disease. The Board also observes that although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, chronic fatigue syndrome, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Chronic fatigue syndrome is a complex disease that requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and it is not susceptible of lay opinions on etiology. Therefore, the Board finds that the Veteran's statements and treatise evidence cannot be accepted as competent evidence sufficient to establish service connection on either a direct or secondary basis. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for chronic fatigue syndrome, including secondary to service-connected CLL, and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for chronic fatigue syndrome, including secondary to service-connected CLL, is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs