Citation Nr: 1751633 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-00 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome (claimed as fatigue), also claimed as due to an undiagnosed illness. 2. Entitlement to service connection for head and neck tic (claimed as involuntary shaking of the head with dizziness), also claimed as due to an undiagnosed illness. 3. Entitlement to service connection for chronic joint pain, also claimed as due to an undiagnosed illness. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1987 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Denver, Colorado. The issue of service connection for chronic joint pain, also claimed as due to an undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence is against a showing that the Veteran has a current diagnosis of CFS for VA rating purposes. 2. The evidence of record does not show any objective indications of a disability caused by tics of the head and neck. CONCLUSIONS OF LAW 1. The criteria for service connection for CFS have not been met. 38 U.S.C.A. §§ 1110, 1111, 1117, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2016). 2. The criteria for service connection for head and neck tic (claimed as involuntary shaking of the head with dizziness), also claimed as due to an undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1110, 1111, 1117, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's claimed disabilities are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As it relates to a qualifying chronic disability, service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that 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, 2021, 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) (VA has issued an interim final rule extending this date to December 31, 2021). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the VA Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2),(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (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). Effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the VA Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 1,997 (Oct. 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(2). The Persian Gulf War period runs from August 2, 1990 to a date not later than December 31, 2021. 38 U.S.C.A. § 101(33). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. CFS For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, and (2) the exclusion, by history, physical examinations, and laboratory tests, of all other clinical conditions that may produce similar symptoms, and (3) 6 or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a (2016). The Veteran asserts that service connection is warranted for CFS resulting from exposure to chemicals in service. The Veteran served in the Persian Gulf War during Operation Desert Storm/Desert Shield. Service treatment records, including periodic examination reports, however, contain no diagnosis of CFS. Post-service treatment records contain no diagnosis of, or treatment for, CFS. In conjunction with his claim, the Veteran was afforded a VA general examination in April 2011. At that time, the examiner indicated that the Veteran's claims file was available and had been reviewed. The Veteran reported that his environmental hazard exposure was anti-nerve gas ingestion, exposure to oil well fires repetitively, and sand inhalation. Following examination, a diagnosis of CFS was rendered. The examiner opined that it was as likely as not that the Veteran's chronic fatigue syndrome was as likely as not caused by toxic exposures. He indicated that as the chronic fatigue syndrome was a diagnosis medically unexplained, chronic multisystem illness, the timing in his history regarding service in Kuwait and subsequent symptom onset was consistent with the above. Thereafter, the Veteran was afforded a specific VA CFS examination in November 2011. The examiner specifically indicated that the Veteran had chronic fatigue secondary to depression and did not meet the criteria for CFS. The examiner noted that the Veteran reported since his April 2011 VA examination, his fatigue had worsened. He noted having trouble falling asleep and then sleeping 5-6 hours, 6 out of 7 nights per week. One night per week he slept 9-10 hours. He was able to exercise without difficulty, which included riding an exercise bike, lifting weights, and calisthenics 2-3 times per week. About one hour after exercising he became fatigued again until he went to bed that evening. There was no cognitive impairment attributed to CFS. There were also no periods of incapacitation attributable to CFS. There were no restrictions in daily routine activities compared to any pre-illness attributable to CFS. There was no impact on work attributable to CFS. The examiner specifically indicated that the Veteran did not take medication to control CFS. He did not have an acute onset of CFS. The Veteran was also noted to not have debilitating fatigue reducing daily activity to less than 50 percent of a pre-illness level. The Veteran was noted to have generalized muscle aches or weakness in that he complained of muscle cramping hamstrings, quadriceps, inner thighs, biceps, calves, forearms and abdomen, with the only tenderness noted on examination being the calves and posterior knees. The Veteran also complained of migratory joint pains, with complaints of constant achy pain of bilateral hips, shoulders, wrists, elbows, and ankles, which had been worse over the past two years, but required no treatment. The Veteran was also noted to have sleep disturbance. The examiner specifically indicated that the Veteran did not meet the VA criteria for CFS. He noted that the Veteran currently had migratory achy pain in his shoulders, hips, shoulders, elbows, wrists and ankles. He further observed that the Veteran stated that his fatigue was gradual onset and that symptoms restricted routine daily activities currently to 50-75 percent of his pre-illness baseline. Fatigue lasted less than 24 hours after exercise and there was no fever on examination or by history. There was also no axillary or cervical lymphadenopathy on examination. Tension headaches evaluated in April 2011 were diagnosable muscle tension headaches and were not associated with a chronic multi-symptom illness. The Veteran was noted to have chronic pharyngitis but had also been diagnosed by x-ray for chronic sinusitis and was service-connected for this condition. While the Veteran complained of generalized muscle weakness it was not found on examination. Finally, while the Veteran was found to have cognitive abnormalities and depression, psychological evaluation did not feel these were attributed to chronic fatigue syndrome. The examiner indicated that it was believed that the Veteran's issues of depression accounted for his symptoms of fatigue, and that this was not a separate diagnosis. Fatigue was noted to be a common symptom of depression and was consistent with the Veteran's self-report. Based upon review of the evidence, the Board finds the Veteran's claim for service connection for a chronic fatigue syndrome must fail because the medical evidence of record does not indicate a current diagnosis of this condition, separately diagnosable from other diagnosed disabilities. While the Veteran might sincerely believe that his fatigue is due to a separately diagnosable disorder, the Board finds that his opinion is outweighed by the medical opinion that indicates that he does not have CFS. The November 2016 opinion of record, provides detailed rationale for the finding that the Veteran does not meet the diagnostic criteria for a diagnosis of CFS. Carefully considering all the evidence of record, the Board finds that this opinion, with rationale for why the diagnostic criteria are not met, outweigh the Veteran's assertion that he has the disability. The Board recognizes that the April 2011 VA examiner indicated that there was a diagnosis of CFS. However, the examiner did address the VA criteria required for a diagnosis of CFS. Furthermore, no other VA or private examiner has otherwise noted a separate diagnosis of chronic fatigue syndrome. In fact, the November 2011 VA examiner specifically found the Veteran did not have a diagnosis of CFS addressing each of the necessary VA criteria when making this determination. Therefore, the Board finds the evidence weighs against a finding of a current separate diagnosable chronic fatigue syndrome. In short, there is no diagnosis of record during the applicable period that indicates that meets the criteria outlined in 38 C.F.R. § 4.88a. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). For all the foregoing reasons, the claim for service connection for chronic fatigue syndrome must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Head and Neck Tic The Veteran maintains that he currently has a head and neck tic disorder as a result of exposure to chemicals while serving in the Gulf War. A review of the Veteran's service treatment records does not reveal any complaints of, treatment for, or diagnosis of head or neck tics. Normal findings for the heads and neck were noted on the Veteran's service separation examination and the Veteran did not report having any tics of the head or neck on his service separation report of medical history. Private treatment records associated with the claims folder also did not reveal any findings of neck or head tics. In conjunction with his claim, the Veteran was afforded a VA examination in April 2011. At the time of the examination, the Veteran reported that in 1992, shortly after his return from Kuwait, he developed symptoms, including tremors. He stated that these were in the head and upper trunk. He indicated that they occurred once a week but now occurred on a daily basis. The Veteran stated that along with these he would have episodes of vertigo and memory loss which lasted up to two minutes, with these occurring every other day. The Veteran indicated that he had never been evaluated for these symptoms, either while in service or subsequent to service. The Veteran also indicated that sometimes the tic involved his shoulder and could last two to three seconds, stop and then repeat. Neurological testing performed at that time was normal and no diagnosis was made at that time. The Veteran was afforded an additional VA examination in November 2011. At that time, the Veteran described brief episodes of twitching and startle-like myoclonic movements, which began in the late spring/early summer of 1991. These brief episodic myoclonic movements might involve his head and neck as well as his arms and at times even his legs. He reported that they occurred any time, day or night, but mostly in the evening hours when he was relaxed and getting ready to go to sleep. They were more frequent when he was sitting or lying down. He noted that they only lasted 1-2 seconds at most. They were not associated with any stereotypical or repetitive movement or any alteration in his level of consciousness. They did not seem to be associated with chewing movements, blinking movements, finger rubbing, or staring type of activities. These seemed to be more prevalent when the Veteran was overtired or sleep deprived. When he exhibited these startle-like myoclonic movements, following their expression he reported that he might be a bit more tired or fatigued, but not in a dramatic sense. Following examination, the examiner rendered diagnoses of myoclonic twitching for which examiner indicated he saw no evidence to suggest any type of convulsive activity, particularly that of partial complex seizure activity. The examiner also diagnosed the Veteran as having had an anaphylactic reaction to antibiotics with brief syncopal spell in the Spring of 1994. He indicated that the diagnosis of coma at that time was an error. Finally, examiner reported that there was no history of vertigo. He stated that the Veteran's actual complaints of recurrent brief "spells" were actually a disturbance of his equilibrium only, the etiology of which remained unclear. Diagnostic testing to better define those symptoms was never done. He noted that the "spells" were never evaluated, and, in any event, were never and are not associated with any ENT or neurological signs or symptoms. Those episodes were now quite infrequent as the last such event occurred approximately 4 months ago. He noted the origin and etiology at this point would only be speculative. Given the above, the Board finds that service connection for disability caused by a tic disorder of the head and neck, to include as due to undiagnosed illness, is not warranted. First, there is no evidence of record showing a current diagnosis of a disability for VA purposes caused by tics of the neck or head. See Brammer, 3 Vet. App. at 225 (holding that in the absence of proof of a current disability, there is no valid claim). Next, with regard to an undiagnosed illness pursuant to 38 C.F.R. § 3.317, there is no evidence of record of any objective indications of tics of the neck or head in service or to a degree of 10 percent or more following service separation. For the aforementioned reasons, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for tics of the neck and head, to include as due to undiagnosed illness. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against the Veteran's claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; see also Fagan, 573 F.3d at 1287 (2009); see also Gilbert, 1 Vet App. 49. ORDER Service connection for chronic fatigue syndrome (claimed as fatigue), also claimed as due to an undiagnosed illness, is denied. Service connection for head and neck tic (claimed as involuntary shaking of the head with dizziness), also claimed as due to an undiagnosed illness, is denied. REMAND As it relates to the Veteran's claim of service connection for chronic joint pain, the Board notes that the Veteran has indicated that it is his belief that he has current chronic joint pain which is as a result of his Gulf War service, to include chemicals he was exposed to while there. In conjunction with his claim, the Veteran was afforded a VA examination in April 2011. At that time, the Veteran reported having general aching of the hip, ankle, and shoulder joints. He reported that this was present every morning and lasted for about one hour. At the time of his November 2011 VA CFS examination, the Veteran reported having migratory achy pain in his shoulders, hips, elbows, wrists and ankles. To date, there has been no opinion rendered as to the etiology of any current joint pain and its relationship, if any, to his period of service, to include as a result of his Gulf War service. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Given the foregoing, the Veteran should be afforded a VA examination to determine the etiology of any joint pain and its relationship, if any, to his period of service. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any poly-joint pain, to include shoulder, hip, elbow, wrist, knee and ankle disabilities. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. If necessary, a Gulf War examination should be performed. After reviewing the entire claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's poly-joint pain, to include bilateral shoulder, hip, knee, elbow, wrist and ankle disabilities, was incurred in or aggravated during service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's poly-joint pain constitutes an undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to the provisions of 38 C.F.R. § 3.317. 3. Review the claims file. If any development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, take corrective action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the remaining claim on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs